Josey v. Stephens Director TDCJ-CID

Filing 33

OPINION AND ORDER: For the reasons discussed, the Court DISMISSES Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 for failure to state a claim upon which relief may be granted. A certificate of appealability is DENIED. Any pending motions, not previously ruled upon, are DENIED. (Ordered by Judge Terry R Means on 10/1/2015) (trs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JOHN “TRACY” JOSEY,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 4:14-CV-954-Y

OPINION AND ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by Petitioner, John “Tracy” Josey, a state
prisoner confined in the Correctional Institutions Division of the
Texas

Department

of

Criminal

Justice

(TDCJ),

against

William

Stephens, director of TDCJ, Respondent.
After having considered the pleadings, state-court records,
and relief sought by Petitioner, the Court has concluded that the
petition should be dismissed
I.

FACTUAL AND PROCEDURAL HISTORY

TDCJ’s website reflects that Petitioner is serving an enhanced
sentence of 99 years for a 2011 conviction for evading arrest with
a vehicle, a deadly weapon, in Wise County, Texas, Case No.
CR15821. (TDCJ’s Offender Information Details, available at http://
www.tdcj.state.tx.us.)

Petitioner appealed, but the Second Court

of Appeals of Texas affirmed the trial court’s judgment and

overruled Petitioner’s motion for rehearing.

Josey v. State, No.

02-11-513-CR, 2013 WL 4507646 (Tex. App.–Fort Worth Aug. 22, 2013).
While the appeal was pending, Petitioner filed a petition for writ
of mandamus requesting, in part, recusal of five appellate judges
for bias.

(Resp’t’s Mot., Ex. A, ECF No. 26-2.)

The Second Court

denied recusal and denied the petition for writ of mandamus.
at 3-7.)

(Id.

In re Josey, No. 02-13-210-CV, 2013 WL 3247301, at *1

(Tex. App.–Fort Worth June 27, 2013).

Petitioner then filed a

petition for discretionary review in the Texas Supreme Court.
(Id., Ex. B, entry for Aug. 29, 2013.)

While the petition was

pending, Petitioner filed numerous motions, including a motion for
judgment notwithstanding the verdict.

(Id., Docket Sheet & entry

for Dec. 4, 2013.)
II.

ISSUES

Although largely indecipherable, Petitioner raises four claims
for relief:
(1)

“Judgment
on
.
.
.
motion
notwithstanding the verdict”;

(2)

“Exceptional circumstances”;

(3)

“Recusal challenge”; and

(4)

“Entrapment.”

(Pet. at 6-7.)

for

judgment

Respondent has filed a motion to dismiss the

petition for failure to state a claim upon which habeas relief may
be granted.

(Resp’t’s Mot., ECF No. 26.

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III.

DISCUSSION

To the extent Petitioner attempts to raise the defense of
entrapment

to

dismissed.

his

offense

of

evading

arrest,

the

claim

is

Petitioner raises the same or similar claim in his

pending federal-habeas petition in Civil Action No. 4:15-CV-618-A,
wherein he challenges his 2011 conviction and sentence.
In addition, to the extent Petitioner challenges the appellate
court’s denial of his petition for writ of mandamus seeking recusal
of appellate judges or asks the Court to grant, or compel the Texas
Supreme Court to grant, him judgment notwithstanding the verdict
based

on

“exceptional

circumstances,”

the

Court

agrees

with

Respondent that Petitioner fails to state a claim cognizable in a
federal habeas-corpus proceeding.

See Nichols v. Scott, 69 F.3d

1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996) (“An
attack on a state habeas proceeding does not entitle the petitioner
to habeas relief in respect to his conviction, as it is an attack
on a proceeding collateral to the detention and not the detention
itself.” (internal quotes omitted); Quince v. Crosby, 360 F.3d
1259, 1261-62 (11th Cir.), cert. denied, 543 U.S. 960 (2004);
Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493
U.S. 1012 (1989) (agreeing with the majority view and holding that
“a petition alleging errors in the state post-conviction review
process is not addressable through habeas corpus proceedings”).
The

purpose

of

federal

habeas

3

review

is

to

challenge

the

petitioner’s confinement itself, not to attack the state-court
post-conviction and collateral proceedings.

Rudd v. Johnson, 256

F.3d 317, 320 (5th Cir.), cert. denied, 534 U.S. 1001 (2001);
Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527
U.S. 1056 (1999).

IV.

CONCLUSION

For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
for failure to state a claim upon which relief may be granted.
certificate of appealability is DENIED.

Any pending motions, not

previously ruled upon, are DENIED.
SIGNED October 1, 2015.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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