Read v. Stephens-Director TDCJ-CID

Filing 12

MEMORANDUM OPINION and ORDER: The court ORDERS the petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed with prejudice for lack of subject matter jurisdiction. For the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 5/6/2016) (tln)

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IN THE UNITED STATES DISTRICT JOURT
FOR THE NORTHERN DISTRICT OF Tji:XAS
FORT WORTH DIVISION
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MAY - 6 2016

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DONALD WAYNE READ,

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Petitioner,

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v.

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No. 4:16-CV-319-A

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LORIE DAVIS, Director, 1
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 28
U.S.C.

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2254 filed by petitioner, Donald Wayne Read, a state

prisoner incarcerated in the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ), against Lorie
Davis, director of TDCJ, respondent. After having considered the
petition and relief sought by petitioner, the court has concluded
that the petition should be summarily dismissed for lack of
subject matter jurisdiction. No service has issued upon
respondent.

1Effective May 4, 2016, Lorie Davis replaced Williams Stephens as
director of the Texas Department of Criminal Justice, Correctional
Institutions Division. Pursuant to Federal Rule of Civil Procedure 25(d),
Davis is automatically substituted as the party of record.

I. FACTUAL AND PROCEDURAL HISTORY

In this petition, petitioner challenges his October 8, 1996,
conviction for driving while intoxicated (DWI)

in Parker County,

Texas, No. 12163, for which he was sentenced to 10 years'
confinement. Pet. 2, ECF No. 1. Petitioner is currently serving a
25-year sentence for a felony DWI conviction in Tarrant County,
Texas, Case No. 1315382D. TDCJ's Offender Information Details,
available at http://www.tdcj.state.tx.us/offender information.

His 1996 DWI conviction was one of two prior DWI convictions used
to elevate his current DWI to felony status.
II. SUBJECT MATTER JURISDICTION

This court has the duty to assure that it has jurisdiction
over the matters before it. Burge v. Parish of St. Tammany, 187
F.3d 452, 465-66 (5th Cir. 1999); MCG, Inc. v. Great W. Energy
Corp.,

896 F.2d 170, 173 (5th Cir. 1990). Generally, for this

court to have subject matter jurisdiction over a claim under

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2254, the petitioner must be "in custody" pursuant to the
underlying conviction the subject of the proceeding. Lackawanna
County Dist. Att'y v. Coss,

532 U.S. 394, 394 (2001); Maleng v.

Cook, 490 U.S. 488, 492 (1989). A federal court lacks subject

matter jurisdiction to entertain a

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2254 action if, at the time

the habeas petition is filed, the prisoner is not "in custody"
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under the conviction and sentence he seeks to attack. Maleng, 490
U.S. at 490-91. This is true even if the prior conviction is used
to enhance the sentence imposed for any subsequent crime of which
he is convicted. Id. at 492. Telephonic communication with TDCJ
confirmed that petitioner's 10-year sentence expired at the
latest on October 9, 2006, nearly a decade ago. Thus, Petitioner
is not in custody under the 1996 DWI conviction and sentence.
Accordingly, he may not now challenge the conviction directly in
a

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2254 petition. Garlotte v. Fordice, 515 U.S. 39, 45 (1995);

Maleng, 490 U.S. at 492-93.

For the reasons discussed herein,
The court ORDERS the 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 with prejudice for lack of subject matter jurisdiction.
For the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied.
SIGNED May

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2016.

JUDGE

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