McPherson v. Davis-Director TDCJ-CID
Filing
16
MEMORANDUM OPINION and ORDER: 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. It is further ordered that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 9/14/2018) (bdb)
U.S. D!STRIC C URI
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
AMARIO LYNN MCPHERSON,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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OURr-: ,. '"" I
EXA~ l~
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CLERK, Tu;~ DISTRICT COURT
BY~~-,,-~~~~
Deputy
NO. 4:17-CV-418-A
(Consolidated with
No. 4:18-CV-276-A)
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Amario Lynn McPherson, a state
prisoner, against Lorie Davis, director of the Texas Department
of Criminal Justice, Correctional Institutions Division (TDCJ),
Respondent. After having considered the pleadings, state court
records, and relief sought by petitioner, the court has concluded
that the petition should be dismissed as an abuse of the writ.
I. Factual and Procedural History
On February 21, 1996, in Tarrant County, Texas, Case No.
0572747A, pursuant to a plea agreement, petitioner pleaded guilty
to one count of first-degree murder with a deadly weapon, for an
offense occurring on January 3, 1995, and was sentenced to life
imprisonment in TDCJ.
(SHR01 1 38, doc. 11-2.) The primary theme
in this petition appears to be that the state legislature
"reduced the punishment of imprisonment for the sentence of life
to 15 years"; therefore, having served over 18 years of flat
time, he has completed his life sentence,
in addition to a 3-year
sentence on his 1998 conviction for assault on a public servant
in Karnes County, Texas, Case No. 98-06-00049-CRK.
(Pet.-01 2 7-9,
doc. l; Pet.-2 3-4, doc. 6.) It is petitioner's contention that
"the laws that determine [his] parole eligibility must be
reviewed in order to know the number of years that the
legislature has acquired as the definition for the word 'life' in
[Texas Penal Code]
§
12.32(a)." (Pet.-1 5, doc. 1.) It is also
petitioner's contention that TDCJ has incorrectly calculated his
parole eligibility under the "one-half rule"
(with a 30-year
maximum)
instead of the "one-fourth rule"
(with a 15-year
maximum)
in effect at the time he committed the offense.
(Pet.-1
5-9, doc. 1.) Thus, he argues that he completed his life sentence
over eight years ago on January 8, 2010, and, having now served
all of his sentences, his continued imprisonment is illegal and
unconstitutional.
(Pet.-1 3, doc. l; Pet.-2 3-5, doc.
6.)
This is petitioner's fifth federal petition filed in this
1''SHR01'' refers to the record of petitioner's state habeas-corpus
proceeding in WR-44,536-01; "SHR15" refers to the record of his state habeascorpus proceeding in WR-44,536-15.
2"Pet.-01" and "Pet.-02" refers to petitioner's federal habeas petitions
in 4:17-CV-418-A and 4:18-CV-276-A, respectively.
2
court under
§
2254 relevant to the same conviction and/or
sentence since the year 2000. 3 To the extent petitioner attempts
to recharacterize the petition as a petition under
§
2241 or
argues that the requirements for filing federal petitions under
§
2254 by state prisoners are inapplicable because he is no longer
"in custody pursuant to a judgment of a state court,n his
arguments fail.
(Pet.-1 2-3, doc. 1.) See Jimenez v. Director,
TDCJ-CID, No. 9:08-CV-214, 2009 WL 152714, at *l (E.D.Tex. Jan.
21, 2009)
(providing "prisoners cannot evade the procedural rules
governing Section 2254 petitions by the simple expedient of
claiming that their petitions are brought under Section 2241
instead" and citing cases). Petitioner was previously informed
that
§
2254 provides the exclusive remedy for a state prisoner
challenging the fact or duration of his confinement and seeking
an immediate or speedier release. See Order, McPherson v. Davis,
No. 4:17-CV-1005-0, ECF No. 10; Wolff v. McDonnell, 418 U.S. 539,
554 (1974). Therefore, despite his efforts to recast the nature
of this proceeding, the court must consider his claims
challenging his conviction or sentence within the procedural
confines of
§
2254.
3
see Pet., McPherson v. Johnson, No. 4:00-CV-480-Y, ECF No. 1; Pet. 1
McPherson v. Cockrell, No. 4:02-CV-455-A, ECF No. 1; Pet., McPherson v. State,
No. 4:02-CV-585-A, ECF No. l; Pet., McPherson v. Davis, No. 4:17-CV-1005-0,
ECF No. 1.
3
II.
Title 28 U.S.C.
successive
§
§
Successive Petition
2244(b) requires dismissal of a second or
2254 petition filed by, or on behalf of, a state
prisoner unless specified conditions are met. 28 U.S.C.
§
2244(b) (l)-(2). A petition is successive when it raises a claim
or claims that were or could have been raised in an earlier
petition or otherwise constitutes an abuse of the writ. See Crone
v. Cockrell,
F.3d 234, 235
324 F.3d 833, 837
(5th Cir. 2003); In re Cain, 137
(5th Cir. 1998). The crucial question in
determining availability is whether petitioner knew or should
have known through the exercise of due diligence the facts
necessary to his current claims when he filed his prior
petitions.
In this case, petitioner knew or should have known with any
diligence at or near the time of his conviction that his parole
eligibility was heightened because his judgment of conviction
contains an affirmative deadly-weapon finding and that he would
have to serve 30 years of his sentence, without credit for good
time, before being eligible for parole under the state's
statutory scheme in effect at the time.' Consequently, his
current claims could have been raised in an earlier petition.
4
The state courts have considered the issue of petitioner's parole
eligibility and concluded that one-half of a life sentence cannot be
quantified and, under the law in effect at the time petitioner committed the
offense, he is not eligible for parole until his actual calendar time served,
without consideration of good conduct time, equals 30 years. (SHR15 43, doc.
12-5.)
4
Further, petitioner is well aware that he must obtain
authorization to file a successive petition in this court from
the United States Court of Appeals for the Fifth Circuit, as the
last three of his
§
2254 petitions have been either dismissed or
transferred to the Fifth Circuit on that basis. See 28 U.S.C.
§
2244(b) (1)-(3). Without such authorization, this court is without
jurisdiction to consider the petition. See United States v.
Orozco-Ramirez, 211 F.3d 862, 867
(5th Cir. 2000); Hooker v.
Sivley, 187 F.3d 680, 681-82 (5th Cir.1999).
III.
Warning
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 1996 conviction or sentence and/or his
5
eligibility for parole, 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.
For the reasons discussed herein,
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. It is further ordered that a
certificate of appealability be, and is hereby, denied.
SIGNED September
1+,
2018.
)fo
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MCBRYDE
ITED STATES
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