Scott v. Stephens Director TDCJ-CID

Filing 5

Memorandum Opinion and Order dismissing as successive 1 PETITION for Writ of Habeas Corpus. It is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 3/2/2015) (mdf) Modified on 3/2/2015 (mdf).

D1ST~ICT

u.s. DiSTRICT COURT
NORTHERN

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OFTEXAS

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·FILED.·;
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MAR - 22015
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF EXAS
FORT WORTH DIVISION.

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CLERK, U.S. DISTRiCT COURT'

GERY LEE SCOTT,

By_-:---..::
Deputy

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'--------...-.:..---:...---.;-=:...........-

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Petitioner,

.......,.,~

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v.

No. 4:15-CV-143":A

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WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

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Respondent.

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MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to
U.S.C.

§

2254 filed by

pet~tioner,

2~

Gery Lee Scott, a state

prisoner confined in the Texas Department of Criminal Justice,
Correctional Institutions Division (TDCJ), against William
Stephens, Director of TDCJ, respondent.

After having considered

the pleadings, state court records in a prior petition, and
relief sought by petitioner, the court has concluded that the
petition should be summarily dismissed as a successive petition.
I.

"

Factual and Procedural History

In September 2002 petitioner was convicted, pursuant to a
negotiated guilty plea, of injury to a child-bodily injury in. the
371st District Court of Tarrant County, Texas, Case No. 0826520D,

and sentenced to 35 years' confinement.

Pet. 2, ECF No.1.'

Petitioner filed a prior federal habeas petition challenging his
35-year sentence, which was dismissed as untimely under the
federal statute of limitations for

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2254 petitions.

Stephens, Civil Action No. 4:13-CV-384-A.

Scott v.

The court takes

judicial notice of the pleadings and state court records filed in
petitioner's prior federal habeas action.
In this second federal petition, petitioner challenges the
constitutionality of Texas Government Code

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508.145

("Eligibility for Release on Parole; Computation of Parole
Eligibility Date") and 508.149 ("Inmates Ineligible for Mandatory
Supervision").

Pet. 6, ECF NO.1.

According to Petitioner,

sections 508.145 and 508.149 deprive him of his liberty interest
in his accrued good- and work-time credits.

Pet'r's Br. 1-2.

No service has issued upon respondent.
II.

Successive Petition

Rule 4 of the Rules Governing

Se~tion

United States District Courts and 28 U.S.C.

2254 Cases in the
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2243 both authorize

a habeas corpus petition to be summarily dismissed. 1

The Court

ISection 2243, governing applications for writ of habeas corpus,
provides:
A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue an

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of Appeals for the Fifth Circuit recognizes a district court's
authority under Rule 4 to examine and dismiss frivolous habeas
petitions prior to any answer or other pleading by the state.
Kiser v. Johnson,

163 F.3d 326, 328 (5thCir. 1999).

Title 28 U.S.C. § 2244(b) provides that a claim

pre~ented

a second or successive petition filed by a state prisoner under

in
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2254 that was not presented in a prior petition must be dismissed
unless(A)
the applicant shows that the claim relies on
a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; o~
(B) (i)
the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii)

the facts underlying the claim, if proven

order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the
applicant or person is not entitled thereto.
28 U.S.C.

§

2243 (emphasis added) .

Rule 4 of the Rules Governing Section 2254 Cases provides:
The original petition shall be promptly presented to a judge.
of the district court in accordance with the procedure of the
court for the assignment of its business. The petition shall be
examined promptly by the judge to whom it is aS9igned.
If it
plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the
district court, the judge shall make an order for its summary
d;J.smissal and cause the petitioner to be notifi.ed.
Rules Governing Section 2254 Cases, Rule 4 (emphasis added).

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and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable fact finder would have found the applicapt'
guilty of the und~rlying offense.
28 U.S.C.

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2244 (b) (1) - (2) .

A successive petition is one that raises a claim that was or
could have been raised in an earlier petition or otherwise
constitutes an abuse of the writ.

See Crone v. Cockrell, 324

F.3d 833, 837 (5th Cir. 2003) i In re Cain, 137 F.3d 234, 235 (5th
Cir. 1998). Petitioner offers no explanation as to why he could
not have raised his constitutional claim in his 2013 petition.
Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992).

At the

time he filed his earlier petition, petitioner"could have
determined the impact of the statutory provisions on his
eligibility for early release to mandatory supervision and/or
parole.

Therefore, petitioner could have raised his claim in his

prior federal petition but did not.

Accordingly, the petition is

a successive petition.
Before a petitioner may file a successive

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2254 petition,

he must obtain authorization from the appropriate court of
appeals.

28 U.S.C.

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2244(b) (3) (A).

Toward that end, this court

may either dismiss the claim without prejudice pending review by
a three-judge panel of the Fifth Circuit Court of
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A~peals,

or, it

may transfer the successive petition to the Fifth Circuit for a
determination of whether the petitioner should be allowed to f i l e '
the successive petition in the district court.
2244 (b) (3) (A).

28 U.S.C.

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See also Henderson "If. Haro, 282 F. 3d 862, 864

(5th Cir. 2002); In re Epps, 127 F.3d 364, 365 (5th Cir.1997)
(approving practice of transferring successive motions to the
Circuit and establishing procedures in the Circuit to handle such
transfers).

Because petitioner has presented neither argument

nor evidence indicating that he will be able to make a prima
facie showing that his application satisfies the statute,
dismissal without prejudice would be more efficient and better
serve the interests of justice than a transfer to the Fifth
Circuit.

Accordingly, the petition should be dismissed to allow

petitioner to seek authorization to file his petition in the
Fifth Circuit.

In re Epps, 127 F.3d 364, 365 (5th Cir. 1997);

United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.
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2000).
For the reasons discussed herein,
It is ORDERED that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.

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2254 be, and is hereby,

dismissed as an unauthorized successive petition under 28 U.S.C;
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2244 (b) (2).

It is further ORDERED that a certificate of

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appealability be, and is hereby, denied.
SIGNED March _--,,:2.:-.

' 2015.

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