Wright v. Catoe

Filing 5

MEMORANDUM OPINION and ORDER dismissing 1 Petition. The petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as an abuse of the writ and that a monetary sanction in the amount of � 36;100.00 be, and is hereby, imposed due to petitioner's repetitious and frivolous federal filings. Petitioner is prohibited from filing any pro se civil actions in this court until the monetary sanction is paid in full. A certificate of appealability is denied. Lorie Davis-Director TDCJ-CID added. Jeffrey Catoe terminated. (Ordered by Judge John H. McBryde on 1/10/2017) (npk)

U.s.

rEXAS

NORTHER;.J

IN THE UNITED STATES DISTRI T COURT
'~""'''''-1
TEXAS
'H"~
FOR THE NORTHERN DISTRICT
FORT WORTH DIVISION
JAN t 02017
L-_..__,.....

GERALD ANTHONY WRIGHT,

§

Petitioner,

COURT

CLERK, U.S.

§

By

-c------Deputy

§

§

v.

§

No. 4:16-CV-1176-A

§

LORIE DAVIS, Director,l
Texas Department of Criminal
Justice, Correctional
Institutions Division,

§

§
§
§

§

Respondent.

§

MEMORANDUM OPINION
and
ORDER

This is a petition for writ of habeas corpus pursuant to 28
U.S.C.

§

2254 filed by petitioner, Gerald Anthony Wright, a state

prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie
Davis, Director of TDCJ, respondent. 2 No service has issued upon
respondent. After having considered the pleadings, the court
records filed in petitioner's previous federal habeas actions,

Ipetitioner designates Jeffrey Catoe, Warden, as Respondent. However,
petitioner is confined in the Correctional Institutions Division of the Texas
Department of Criminal Justice (TDCJ). Therefore, the correct respondent is
Lorie Davis, Director of the Correctional Institutions Division of TDCJ. The
clerk is directed to docket and change the designation of the respondent
accordingly.
2petitioner indicates in his cover letter that he has requested that the
$5.00 filing fee be "released" from his inmate trust account to the court,
however, the fee has not yet been received by the clerk.

and the relief sought by petitioner, the court has concluded that
the petition should be summarily dismissed as an abuse of the
writ and that sanctions should be imposed.

I.

Factual and Procedural History

The history relevant to this case is set forth in the
magistrate judge's findings and conclusions in Wright v.
Quarterman, Civil Action No. 4:08-CV-343-A, 2008 WL 4787647
(N.D.Tex. Oct. 27, 2008). Petitioner continues to serve a life
sentence in TDCJ on his 1986 conviction for sexual assault in
Tarrant County, Texas, Case No. 0272196D. Petitioner has filed at
least six prior federal petitions under 28 U.S.C.

§

2254 in this

court, two of which are relevant to the instant petition. Wright
v. Stevens, Civil Action No. 4:14-CV-138-A (dismissed as
successive) i Wright v. Quarterman, Civil Action No. 4:08-CV-343-A
(dismissed as successive and a certificate of appealability
denied by the Fifth Circuit). The court takes judicial notice of
the pleadings and state court records filed in petitioner's prior
federal habeas actions.

II.

Successive Petition

Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts and 28 U.S.C.

2

§

2243 both authorize

a habeas corpus petition to be summarily dismissed. 3 The Court 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 (5th Cir. 1999). From the
face of the instant petition and court records, it is apparent
that this is a second or successive petition.

See 28 U.S.C.

§

2244 (b) (1) .
In this petition, petitioner claims that his "legal
eligibility for mandatory supervision must be honored" by the
Texas Board of Pardons and Paroles and that the board is "using

3Section 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) .

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

harsher standards and policies to prolong" his incarceration. 4
(Pet. 6, ECF No.1.) Petitioner has raised the same or similar
claims in his prior petitions in Civil Action Nos. 4:14-CV-138-A
and 4:08-CV-343-A and is well aware of the successive-petition
bar and the requirement that he obtain authorization to file such
a petition from the Fifth Circuit Court of Appeals. Petitioner
has not demonstrated that the Fifth Circuit has authorized him to
file the instant petition. This court is therefore without
jurisdiction to consider the petition. In re Epps, 127 F.3d 364,
365 (5th Cir. 1997)

i

United States v. Orozco-Ramirez, 211 F.3d

862, 867 (5th Cir. 2000).

4petitioner also makes a passing reference that the board is "applying
inapplicable parole guidelines to" him but does not otherwise develop the
claim. (Pet'r's Aff.) Nevertheless, a habeas corpus applicant under 28 U.S.C.
§ 2254 must claim violation of a federal constitutional right to be entitled
to relief. Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). There is no
constitutional right to conditional release prior to the expiration of a valid
sentence. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7
(1979). Moreover, in Texas, parole means the discretionary and conditional
release of an eligible prisoner. TEX. CODE CRIM. PROC. ANN. art. 508.001(6) (West
2014). Texas inmates, therefore, have no constitutionally protected right to
parole because the relevant Texas statutes then and now do not create an
expectation of release that would implicate due process considerations.
Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995); Allison v. Kyle, 66 F.3d 71 (5th
Cir. 1995). Such release is entirely speculative. Madison v. Parker, 104 F.3d
765, 768 (5th Cir. 1997). Because petitioner has no liberty interest in
obtaining parole in Texas, he has no claim for violation of due process in the
procedural guidelines affecting his suitability for parole, the frequency of
parole reviews, or the factors considered by the Board to reach its decision.
Teague v. Quarterman, 482 F.3d 769, 773 (5th Cir. 2007); Allison, 66 F.3d at
73; Orellana, 65 F.3d at 32. Further, denial of parole is not an additional
punishment nor does it increase petitioner's punishment for the offense; thus,
such denial and/or retroactive application of changes in Texas parole
procedures do not constitute an ex post facto violation. See Olstad v.
Collier, 326 Fed. App'x 261, 264, 2009 WL 1116284, at *1-2 (5th Cir. Apr. 27,
2009); Wallace v. Quarterman, 516 F.3d 351, 355-56 (5th Cir. 2008); Orellana,
65 F.3d at 32; Cruz v. Texas Parole Div., 87 Fed. App'x 346, 347, 2004 WL
190251, at *1 (5th Cir. Jan. 30, 2004).

4

III.

Sanctions

In the undersigned's Memorandum Opinion and Order in No.
4:14-CV-138-A, petitioner was warned as follows:
Federal courts have inherent authority "to protect
the efficient and orderly administration of justice and
. to command respect for [its] orders, judgments,
procedures, and authority." In re Stone, 986 F.2d 898,
902 (5th Cir. 1993). Included in such power is the
authority to levy sanctions in response to abusive
litigation practices. Id. Sanctions may be appropriate
when a pro se litigant has a history of submitting
multiple frivolous claims and can include restrictions
on the ability to file future lawsuits without leave of
court and monetary sanctions. See Fed. R. Civ. P. 11;
Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 189 (5th
Cir. 2008); Mendoza v. Lynaugh, 989 F.2d 191, 195-97
(5th Cir. 1993).
Petitioner is warned that the filing of any other
successive challenge to his 1986 state court conviction
or sentence and/or his eligibility for mandatory
supervision release, without first obtaining and
providing to this Court an authorization from the
United States Court of Appeals for the Fifth Circuit,
may result in the imposition of sanctions, including a
monetary penalty, a bar to filing any further habeas
petitions, motions or lawsuits, or other impediments.
(Mem. Op. 4-5, ECF No.5.)
Petitioner persists in filing repetitive and frivolous
habeas petitions and has failed to heed the court's warning.
Accordingly, the court concludes that a monetary sanction is
appropriate.
For the reasons discussed herein,

5

The court ORDERS that the petition of petitioner for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby,
dismissed as an abuse of the writ and that a monetary sanction in
the amount of $100.00 be, and is hereby, imposed due to
petitioner's repetitious and frivolous federal filings.
Petitioner is prohibited from filing any pro se civil actions in
this court until the monetary sanction is paid in full. A
certificate of appealability is denied.
SIGNED January

It>

, 2017.

JUDGE

6