Durham v. Davis

Filing 16

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 11 Memorandum and Recommendations, ORDER OF DISMISSAL. It is hereby ORDERED that the Petitioner's Petition for Writ of Habeas Corpus pursuant to 2254 is DENIED. The Petitioner is DENIED a certificate of appealability. Case terminated on 12/29/2016(Signed by Judge Hilda G Tagle) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GLENN LACY DURHAM,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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December 29, 2016
David J. Bradley, Clerk

CIVIL NO. 2:16-CV-355

ORDER
Glenn Lacy Durham (“Durham”) is a Texas state prisoner currently confined
in the Michael Unit in Tennessee Colony, Texas. Proceeding pro se and in forma
pauperis, Durham sent a letter to the Court on August 3, 2016, which is construed
as a petition for writ of habeas corpus. (D.E. 1). The underlying conviction which is
the subject of the petition is a 1999 Kleberg County conviction for the offenses of
murder and injury to a child. Petitioner claims the indictment in his case was
defective.
The Court now has before it Durham’s federal habeas petition (D.E. 1); the
Memorandum and Recommendation (“M&R”) of the Magistrate Judge to whom this
case was referred (D.E. 7); the Supplemental M&R (D.E. 11); and Durham’s
Objections to the Supplemental M&R (D.E. 14, 15).
Petitioner has filed three previous unsuccessful federal habeas petitions
challenging the same conviction as his present petition. Durnham v. Cockrell, No.
2:02- cv-396 (S.D. Tex. 2003); Durnham v. Dretke, No. 2:05-cv-550 (S.D. Tex. 2005);
and Durnham v. Thaler, Case No. 2:09-cv-256 (S.D. Tex. 2009). The M&R filed in
Petitioner’s first and third habeas cases contain detailed recitations of the facts
surrounding Petitioner’s underlying conviction and the procedural history of this
case. See D.E. 15 in Durnham v. Cockrell, No. 2:02-cv-396 (S.D. Tex. Apr. 28, 2003);
see also D.E. 17 in Durham v. Thaler, Case No. 2:09-cv-256 (S.D. Tex. Feb. 10,
2010). In short, Petitioner was found guilty of murder and injury to a child and
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sentenced to two concurrent life sentences after witnesses testified Petitioner and
his wife routinely beat Petitioner’s son, who ultimately died after a beating on June
13, 1998. Id. Petitioner’s first federal habeas petition was denied on the merits and
his second and third habeas petitions were denied as second or successive.
Additionally, in 2010, the Fifth Circuit Court of Appeals denied Petitioner’s motion
for authorization to file a successive 2254 application. In re: Glenn Lacy Durham,
No. 10-40474 (5th Cir. Aug. 31, 2010).
The Magistrate Judge recommends that the Court dismiss Durham’s
complaint without prejudice. See D.E. 7 at 5. Rule 4 of the Rules Governing Section
2254 Cases in federal district courts authorizes a habeas corpus petition to be
summarily dismissed when it appears the petition is not entitled to relief. See Rule
4 of the Rules Governing Section 2254 Cases; see also 28 U.S.C. § 2244(b)(2)
(requiring dismissal of a second or successive petition filed by a state prisoner
pursuant to 28 U.S.C. § 2254, except under two circumstances). 1 The Court reviews
objected-to

portions

of

a

Magistrate

Judge’s

proposed

findings

and

recommendations de novo. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a
de novo determination of those portions of the report or specified proposed findings
and recommendations to which objection is made.”).
Here, the Magistrate Judge recommended that the Court dismiss Durham’s
complaint on the grounds that Durham has presented neither argument nor
evidence indicating that he will be able to make a prima facie showing his
application satisfies the exceptions for dismissal pursuant to 28 U.S.C. § 2254. The
Magistrate Judge also recommended that a Certificate of Appealability (COA) be

1

28 U.S.C. § 2254(b)(2) provides:
A claim presented in a second or successive habeas corpus application under section 2254 that was
not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(b)(2).

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denied because Durham has not made the necessary showing for its issuance. D.E. 7
at 5; see also 28 U.S.C. § 2253(c)(1)(A). In the Supplemental M&R, the Magistrate
Judge recommended that Durham’s complaint pursuant to a Federal Rule of Civil
Procedure 60 motion also be dismissed. See D.E. 11 at 2.
Durham objects to the Supplemental M&R on the grounds that there was
fraud, misrepresentation, or misconduct by an adverse party, and that such fraud
prevented the movant from fully and fairly presenting his case at trial. See D.E. 14
at 2; see also D.E. 15. Durham also raises the objection that the judgment is void for
lack of subject-matter jurisdiction. D.E. 14 at 2.
The Court finds that these objections do not warrant granting relief. Having
reviewed the findings of fact, conclusions of law, the Magistrate Judge’s M&R, the
Magistrate Judge’s Supplemental M&R, Durham’s objections, and the applicable
law, the Court adopts the Magistrate Judge’s M&R and Supplemental M&R in their
entirety. Accordingly, it is hereby ORDERED the Petitioner’s Petition for Writ of
Habeas Corpus pursuant to § 2254 is DENIED, that Petitioner is DENIED a
certificate of appealability, and that this action is DISMISSED.
The Court further DIRECTS the Clerk to close the case.

SIGNED this 29th day of December, 2016.
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Hilda Tagle
Senior United States District Judge

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