Brown v. Davis-Director TDCJ-CID

Filing 10

MEMORANDUM OPINION and ORDER. Petitioner's petition for a writ ofhabeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as an abuse of the writ. It is further ORDERED that all pending motions and a certificate of appealability be, and are hereby, denied. (Ordered by Judge John McBryde on 7/28/2017) (npk)

U.S. DISTRICT COURT
\ 'N'O'RTITER1W~T~TCT OF TEXAS

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IN THE UNITED STATES DISTRICT ~OURT
FOR THE NORTHERN DISTRICT OF ~,EXAS
FORT WORTH DIVISION

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JEROME D. BROWN,

CLERK,

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BY~~~~~~~~~~~

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Petitioner,

jJf;3TR.fCT COlJRT

Deputy

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v.

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

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No. 4:17-CV-616-A

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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.

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2254 filed by petitioner, Jerome D. Brown, 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 previous habeas
actions, and relief sought by petitioner, the court has concluded
that the petition is repetitive and should be summarily dismissed
as an abuse of the writ.
I.

Factual and Procedural History

Petitioner is serving a 32-year sentence for his April 1996
conviction in Tarrant County, Texas, Case No. 0514634D, for

aggravated assault on a peace officer with a deadly weapon. Pet.
2, ECF No. 1. Petitioner has filed at least five previous

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2254

habeas petitions in this court challenging the same conviction. 1
The court takes judicial notice of the pleadings and state court
records filed in those previous 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.

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2243 both authorize

a habeas-corpus petition to be summarily dismissed. 2 The Fifth

1

See Pet., Brown v. Quarterman, No. 4:08-CV-138-A, ECF No. l; Pet.,
Brown v. Quarterman, No. 4:06-CV-632-A, ECF No. l; Pet., Brown v. Dretke, No.
4:06-CV-296-Y, ECF No. l; Pet., Brown v. Dretke, No. 4:03-CV-1435-A, ECF No.
l; Pet., Brown v. Johnson, No. 4:99-CV-693-Y, ECF No. 1.
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.

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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) .

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 yet another habeas petition
pursuant to

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2254 challenging his 1996 conviction constitutes an

abuse of the writ. In light of petitioner's history of repetitive
and frivolous filings, he is warned that any future attempts of a
similar nature will lead to the imposition of sanctions,
including monetary penalties, a bar to filing any further
complaints, petitions, or motions 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.

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2254 be, and is hereby,

dismissed as an abuse of the writ. It is further ORDERED that all
pending motions and a certificate of appealability be, and are
hereby, denied.
SIGNED July

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