Florence v. Director TDCJ - CID

Filing 20

ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Accordingly, the petition for writ of habeas corpus is DISMISSED without prejudice to Petitioner's right to seek leave to file a successive petition after the issues pending in the appeal of his prior habeas action are resolved. (Ordered by Judge Reed C. O'Connor on 7/27/2017) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
THOMAS WAYNE FLORENCE,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil No. 7:17-CV-081-O

ORDER ACCEPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files, and records in this case, of the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge, and of
Petitioner’s objections thereto, I am of the opinion that the findings of fact, conclusions of law, and
reasons for denial set forth in the Magistrate Judge’s Recommendation are correct and they are
hereby adopted and incorporated by reference as the Findings of the Court.
As noted by the Magistrate Judge, Petitioner’s prior habeas action, challenging the same
conviction at issue in the instant case, was dismissed and is currently pending on appeal. See
Florence v. Stephens, No. 3:14-CV-376 (S.D. Tex. 2016), appeal pending sub nom. Florence v.
Davis, No. 16-40615 (5th Cir.).
On April 18, 2017, the United States Court of Appeals for the Fifth Circuit denied
Petitioner’s motion to file a successive habeas petition as premature because the appeal from his first
petition remains pending. See In re: Thomas W. Florence, No. 16-41294 (5th Cir. 2017). The
instant petition is therefore subject to dismissal because Petitioner does not have permission to file

a successive petition and because any such request would be premature at this time. Moreover,
Petitioner might obtain the relief he seeks in the appeal of his prior habeas action which could render
the grounds for relief set forth in the instant petition moot.
Accordingly, the petition for writ of habeas corpus is DISMISSED without prejudice to
Petitioner’s right to seek leave to file a successive petition after the issues pending in the appeal of
his prior habeas action are resolved.
SO ORDERED this 27th day of July, 2017.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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