Sivongsak v. Livingston

Filing 20

Memorandum Opinion and Order... Petitioner fails to satisfy§ 2244(b) (2) 's requirements for filing a successive petition. Thus, this court must dismiss the petition for lack of jurisdiction. For the reasons discussed herein, The court ORDERS that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed for lack of jurisdiction. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a showing that reasonable jurists would question this court's procedural ruling. (Ordered by Judge John McBryde on 7/7/2017) (wxc)

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U.S. DISTRICT COURT

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IN THE UNITED STATES DISTRICT COURT'
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FOR THE NORTHERN DISTRICT OF TEXAS '
FORT WORTH DIVISION
STEPHEN SIVONGSAK,

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JUL -· 7 2CJ7

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Petitioner,

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v.

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No. 4:16-CV-327-A

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LORIE DAVIS, 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 a writ of habeas corpus pursuant to
28 U.S.C.

§

2254 filed by petitioner, Stephen Sivongsak, a state

prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie
Davis, director of TDCJ, respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition is successive and
should be dismissed for lack of jurisdiction.
I.

Factual and Procedural History

On March 14, 1997, pursuant to a plea agreement, petitioner,
who was certified to stand trial as an adult, pleaded guilty in
the Criminal District Court Number Three of Tarrant County,

Texas, Case No. 0591052A, to the murder of Ricky Harvick with a
deadly weapon and was sentenced to life imprisonment.

(State

Habeas R. WR-75,991-01 at 36, ECF No. 11-1.) Petitioner was
sixteen years old when the offense was committed. Petitioner did
not appeal his conviction or sentence.

(Pet. at 3, ECF No. 1.) He

has however filed two relevant state habeas-corpus applications.
The first application, filed on April 24, 2011,

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was denied by

the Texas Court of Criminal Appeals on June 22, 2011, without
written order on the findings of the trial court.

(State Habeas

R. WR-75,991-01 at cover, ECF No. 11-1.) The second application,
filed on January 13, 2014, was dismissed by the Texas Court of
Criminal Appeals as a subsequent application on March 5, 2014.
(State Habeas R. WR-75,991-02 at 12 & "Action Taken," ECF Nos. 2
& 3.) Petitioner has also filed two prior federal habeas
petitions. The first petition, filed on August 19, 2011, was
dismissed on limitations grounds on January 12, 2012.

(Final J.,

Sivongsak v. Thaler, No. 4:11-CV-604-Y, ECF No. 13.) The second
petition, filed April 14, 2014, was transferred to the Fifth
Circuit Court of Appeals for authorization to file a successive
1Typically, a petitioner's state habeas application is deemed filed when
placed in the prison mailing system, however petitioner's applications do not
provide that information. Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir.
2013). Instead, the applications are deemed filed on the dates Petitioner
signed the "Inmate's Declaration" verifying the applications.

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petition. The Fifth Circuit granted authorization to file a
successive petition on August 1, 2014, stating:
The grant is, however, "tentative" to the extent that
the district court must dismiss Sivongsak's § 2254
application, without reaching the merits, if the
district court determines that Sivongsak has failed to
satisfy the requirements for filing such an
application.
(Order, In re Sivongsak, Case No. 14-10492.) The instant petition
was filed on April 30, 2016.

(Pet. 10, ECF No. 1.)

Petitioner raises two grounds for relief:

(1) his life

sentence as a juvenile offender constitutes cruel and excessive
punishment under the holding in Miller v. Alabama, 567 U.S. 460
(2012), and (2) his trial counsel was ineffective by failing to
object to "paragraph 111 of [the] petition requesting [the]
juvenile court to waive jurisdiction."

(Pet. 6, ECF No. 1.)

Respondent contends that petitioner's claims are successive, and,
thus, this court is without jurisdiction to consider them, or, in
the alternative, that the petition is untimely under the federal
statute of limitations.

(Resp't's Answer at 1, 3-9.)

II.
Title 28 U.S.C.

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Discussion

2244(b) provides that a claim presented in

a second or successive petition filed by a state prisoner under

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2254 that was not presented in a prior petition must be dismissed

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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; or
(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
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 factfinder would have found the applicant
guilty of the underlying offense.
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u.s.c.

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

Under petitioner's first ground, he claims his life sentence
is excessive, cruel, and unusual under Miller v. Alabama, 567
U.S. 460 (2012), because he was 16 years old at the time of the
offense. The Supreme Court held in Miller that the Eighth
Amendment prohibits mandatory life sentences without the
possibility of parole for juvenile offenders. Although the claim
was not previously available to petitioner when he filed his
first petition in 2011 and the Supreme Court has held that Miller
established a new rule of constitutional law that applies
retroactively to cases on collateral review, the case has no
factual application to petitioner's case. Montgomery v.
Louisiana, - U.S. -, 136 S. Ct. 718
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(2016). Petitioner was not

sentenced to life imprisonment without the possibility of parole.
In fact, TDCJ's website shows that petitioner will be eligible
for parole on July 13, 2025. TDCJ's Offender Information Details,
available at http://www.tdcj.state.tx.us/offender_information.

Under petitioner's second ground, he claims his trial
counsel was ineffective during the certification hearing in
juvenile court by failing to object to a paragraph in the
petition requesting the juvenile court's waiver of jurisdiction
containing misleading or erroneous information. This claim is
successive because it could have been raised in petitioner's
first federal petition but was not. See Crone v. Cockrell, 324
F.3d 833, 837 (5th Cir. 2003); In re Cain, 137 f>3d 234, 235

(5th

Cir. 1998). And, petitioner makes no effort to satisfy the
requirements of§ 2244(b) (2). He cites to no new rule of
constitutional law made retroactive to cases on collateral review
in support of his claim or explain why he could not have
discovered the factual predicate for the claim previously through
the exercise of due diligence.
Petitioner fails to satisfy§ 2244(b) (2) 's requirements for
filing a successive petition. Thus, this court must dismiss the
petition for lack of jurisdiction.
For the reasons discussed herein,

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The court ORDERS 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 for lack of jurisdiction. The court further ORDERS that
a certificate of appealability be, and is hereby, denied, as
petitioner has not made a showing that reasonable jurists would
question this court's procedural ruling.
SIGNED

July~,

2017.

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