Sullivan v. Thaler

Filing 21

Order Adopting 19 Magistrate Judge's Findings and Conclusions and Denying Certificate of Appealability. William Mark Sullivan's petition for writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED for lack of jurisdiction. Magistrate Judge Jeffrey L Cureton no longer assigned to case. (Ordered by Judge Terry R Means on 7/29/2013) (mpw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
WILLIAM MARK SULLIVAN,
VS.
WILLIAM STEPHENS,
Director, T.D.C.J.
Correctional Institutions Div.

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CIVIL ACTION NO.4:13-CV-135-Y

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
In this action brought by petitioner William Mark Sullivan
under 28 U.S.C. § 2254, the Court has made an independent review of
the following matters:
1.

The pleadings and record;

2.

The proposed findings, conclusions, and recommendation of
the United States magistrate judge filed on June 28,
2013; and

3.

The petitioner's written objections to the proposed
findings, conclusions, and recommendation of the United
States magistrate judge filed on July 16, 2013.

The Court, after de novo review, concludes that the Petitioner’s objections must be overruled, and that the petition for
writ of habeas corpus must be dismissed for lack of jurisdiction,
for the reasons stated in the magistrate judge's findings and
conclusions.1

1

Sullivan argues that he must be “in custody” for purposes of the
challenged 2000 conviction for aggravated sexual assault of a child in case
number CR10805, because without that underlying conviction, for which he has
discharged the sentence, there could not be the present conviction for failing
to satisfy state sex-offender registration requirements. This type of argument
has been directly rejected. See Barrientos v. Dallas County District Attorney’s
Office, No.3:12-CV4753-O-BN, 2013 WL 1499382, at *2 (N.D. Tex. Jan. 18,
2013)(“Although Petitioner’s present confinement for failure to register as a sex
offender would not have been possible without the underlying indecency
convictions, that fact is insufficient to provide subject matter jurisdiction
over his challenge to the 2006 convictions”), rec. adopted, 2013 WL 1501623
(April 12, 2013)(O’Connor, J)(citing Telio v. Thaler, No.3:12-CV-3716-L-BH, 2012
WL 4932172, at *1-2 (N.D.Tex. Sep. 14, 2012), rec. adopted, 2012 WL 4930085 (N.D.
Tex. Oct. 17, 2012)(Lindsey, J)). For this additional reason, Sullivan’s
objections are overruled.

Therefore, the findings, conclusions and recommendation of the
magistrate judge are ADOPTED.
William Mark Sullivan’s petition for writ of habeas corpus
under 28 U.S.C. § 2254 is DISMISSED for lack of jurisdiction.2
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal
may not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253.3 Rule 11 of the Rules Governing
Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.”4 The COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”5 A petitioner satisfies this standard by showing
“that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists of reason
could

conclude

the

issues

presented

are

adequate

to

deserve

encouragement to proceed further.”6
Upon review and consideration of the record in the abovereferenced case as to whether petitioner Sullivan has made a
showing

that

reasonable

jurists

would

question

this

Court’s

rulings, the Court determines he has not and that a certificate of

2

The Court therefore does not reach the alternative argument made by the
respondent that the petition under § 2254 is time-barred.
3

See Fed. R. App. P. 22(b).

4

RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE
11(a) (December 1, 2009).
5

28 U.S.C.A. § 2253(c)(2)(West 2006).

6

Miller-El v. Cockrell, 537 U.S. 322, 326 (2003)(citing Slack v. McDaniel,
529 U.S. 473, 484 (2000)).

2

appealability should not issue for the reasons stated in the June
28,

2013 Findings, Conclusions, and Recommendation of the United

States Magistrate Judge.7
Therefore, a certificate of appealability should not issue.
SIGNED July 29, 2013.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

7

See Fed. R. App. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).

3