Lee v. Davis-Director TDCJ-CID
Filing
6
Memorandum Opinion and Order: It is ORDERED that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as repetitive and an abuse of the writ. It is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 5/17/2016) (hth)
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U.S. !JL'--iTHiCT COURT
. NOP.THCIU\ DlSTHlCTOflEXAS
IN THE UNITED STATES DISTRICT CQURT
FOR THE NORTHERN DISTRICT OF TEX.·AS
FORT WORTH DIVISION
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BOBBY JOE LEE,
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Petitioner,
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CLFHK, l!.S. DISTRICT COLin
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v.
MAY I 7 2016 I
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f}l'plH\
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No. 4:16-CV-353-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 writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Bobby Joe Lee, a state
prisoner confined in the Texas Department of Criminal Justice,
Correctional Institutions Division (TDCJ), against Lorie Davis,
Director of TDCJ, respondent. After having considered the
pleadings, state court records in petitioner's pending habeas
action, and relief sought by petitioner, the court has concluded
that the petition is repetitive and should be summarily dismissed
as a an abuse of the writ.
1Effective May 4, 2016, Lorie Davis replaced William Stephens as
director of the Correctional Institutions Division of the Texas Department of
Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.
I.
Factual and Procedural History
On September 2, 2010, petitioner was convicted of two theft
offenses and one criminal mischief offense in the 432nd Judicial
District Court of Tarrant County, Texas, in cause numbers
ll81071D, ll81069D, and ll81073D, respectively, and was sentenced
to 50 years' confinement for each offense. By way of this
petition, petitioner challenges his conviction in cause number
ll81069D. Pet. 2, ECF No. l. Petitioner has filed a previous
petition challenging the same conviction and raising the same or
similar claims in Civil Action No. 4:14-CV-928-A, which remains
pending at this time. The court takes judicial notice of the
pleadings and state court records filed in petitioner's pending
federal habeas action.
II.
Successive Petition
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts and 28 U.S.C.
§
2243 both authorize
a habeas corpus petition to be summarily dismissed. 2 The Fifth
2
Section 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
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).
2
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 (5th Cir. 1999).
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); In re Cain, 137 F.3d 234, 235
(5th Cir.
1998). Petitioner's attempt to file another habeas petition
pursuant to
§
2254 challenging his conviction in cause number
1181069D prior to the disposition of his pending habeas petition
constitutes an abuse of the writ. In light of petitioner's
history of repetitive and frivolous filings in Civil Action No.
4:14-CV-928-A, he is warned that any future attempts of a similar
nature will be found to be an abuse of the writ and will lead to
the imposition of sanctions, including monetary penalties, a bar
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 assigned.
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
dismissal and cause the petitioner to be notified.
Rules Governing Section 2254 Cases, Rule 4 (emphasis added).
3
to filing any further motions or lawsuits in this court, and/or
other impediments.
For the reasons discussed herein,
It is ORDERED that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
dismissed as repetitive and an abuse of the writ. It is further
ORDERED that a certificate of appealability be, and is hereby,
denied.
SIGNED May
1 7,
2016.
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R:J:cT
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JUDGE
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