Bonner v. Stephens

Filing 19

MEMORANDUM AND ORDER granting respondent's Motion for Summary Judgment [Doc. No. 7]. Petition for Writ of Habeas Corpus is DISMISSED. COA is DENIED.(Signed by Judge Gregg Costa) Parties notified.(ccarnew, 3)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CHARLES EDWARD BONNER,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 3:11-CV-513
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MEMORANDUM AND ORDER
Petitioner Charles Edward Bonner is a Texas parolee who was convicted of
burglary, possession of cocaine, and two counts of aggravated robbery with a
deadly weapon. This case was dismissed without prejudice for want of prosecution
and was reopened after Bonner filed a motion to reconsider and his response to the
summary judgment motion. The Court will now consider respondent’s summary
judgment motion, which seeks dismissal of the petition as successive.

After

considering the pleadings and the record, the Court GRANTS respondent’s motion
for the reasons discussed below.
I.

BACKGROUND

Bonner was convicted in the 344th District Court of Chambers County,
Texas of burglary of a building in case number 6799, and of possession of cocaine
in case number 6895. (DE 7, Exh. A). He was sentenced to sixty years
imprisonment on each charge.

Bonner was also convicted of two counts of
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aggravated robbery with a deadly weapon in the 23rd District Court of Brazoria
County, Texas in case number 19644, and was sentenced to fifty-five years
imprisonment on each count. Id.
Bonner alleges the following grounds for relief:
1.

Because his current convictions in cause numbers 6799,
6985 and 19644 were enhanced by a void prior
conviction, his parole is illegally enhanced.

2.

The Texas Court of Criminal Appeals “unconstitutionally
denied” his state habeas applications challenging his
parole.

3.

By denying his motion for an evidentiary hearing, the
Court of Criminal Appeals “waived any federal
entitlement to presumption of correctness.”

4.

He was denied his constitutional right to present
evidence.

(DE 1).
II.

PROCEDURAL BACKGROUND

Bonner states that he challenged the enhancement of his convictions in three
separate state habeas applications. (DE 1). On April 29, 2011, he challenged
cause numbers 6799 and 6895 in his twenty-third and twenty-fourth state habeas
applications, which the Texas Court of Criminal Appeals dismissed as subsequent.
He also states that he challenged cause number 19644 in his twenty-fifth state
habeas application, which was filed on May 19, 2011, and also dismissed as
subsequent. In his response to the summary judgment motion, Bonner claims that
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his constitutional rights were violated at the state level because he was denied an
evidentiary hearing, that he was denied a “full and fair opportunity to litigate in the
prior 21 writs,” and that the only process he received was the “standard ‘white
card’ court of criminal appeals write denial....all made in total absence of any
trained lawyer or evidentiary hearing.” (DE 17-4).
III.

SUCCESSIVE PETITION

Respondent argues that petitioner is really challenging the use of a prior
conviction to enhance his sentences in cause numbers 6799, 6895 and 19644, and
attempts to frame his attack as a new event by alleging that he is challenging his
release to parole and its “enhancement.” (DE 7-5). In other words, Bonner is
attempting to avoid the successive petition bar by framing his claims as an attack
on the conditions of his release to parole.
Pursuant to 28 U.S.C. § 2244, as amended by the Antiterrorism and
Effective Death Penalty Act (AEDPA), a petitioner must request permission before
he presents a second or successive petition for federal habeas corpus review. 28
U.S.C. §§ 2244(b)(2) & (3). A petition presenting a challenge to a conviction or
sentence that could have been raised in a prior petition is considered successive.
Propes v. Quarterman, 573 F.3d 225, 229 (5th Cir. 2009).
While the AEDPA does not define “second or successive application,” the
Fifth Circuit Court of Appeals has stated that “a later petition is successive when it
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(1) raises a claim challenging the petitioner’s conviction or sentence that was or
could have been raised in an earlier petition; or (2) otherwise constitutes an abuse
of the writ.” In re Cain, 137 F.3d 234, 235 (5th Cir. 1998). The government
initially bears the burden in pleading abuse of a writ. This burden is satisfied if the
government clearly and particularly (1) alleges abuse of a writ; (2) notes the
petitioner’s prior writ history; and (3) identifies claims appearing for the first time.
McCleskey v. Zant, 499 U.S. 467 (1991). The burden then shifts to the petitioner
to demonstrate that his failure to raise the claim earlier is excused by showing (1)
both cause and actual prejudice, or (2) that a fundamental miscarriage of justice
would result should the petition be dismissed. Id.
Bonner has filed several federal petitions prior to this petition challenging
his conviction and sentence. See Bonner v. Collins, Civil Action No. G-93-107
(S.D. Tex. 1995) (challenging cause no. 19644); Bonner v. Collins, Civil Action
No. G-95-148 (S.D. Tex. 1996) (challenging cause numbers 6799 and 6895);
Bonner v. Dretke, Civil Action No. H-05-62 (S.D. Tex. 2005) (challenging cause
numbers 6799 and 6895 dismissals as successive); Bonner v. Quarterman, Civil
Action No. G-07-264 (S.D. Tex. 2007) (challenging cause numbers 6799 and 6895
dismissals as successive). Bonner has not shown, for the purposes of § 2244(b)(2),
that his claims rely on a new retroactive rule of constitutional law or could not
have been discovered previously through the exercise of due diligence. His claims
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concern the length of his sentences and could have been addressed in his prior
petitions. The fact that Bonner is proceeding pro se does not excuse him from
having to show either cause and actual prejudice or a fundamental miscarriage of
justice, which he has failed to do. See McCleskey, U.S. v. Flores, 981 F.2d 231,
236 (5th Cir. 1993).
Bonner’s petition is successive and must be dismissed. Because he has not
received permission from the Fifth Circuit Court of Appeals to file this petition, his
petition does not comply with 28 U.S.C. § 2244(b)(3)A).
IV.

CERTIFICATE OF APPEALABILITY

Under 28 U.S.C. § 2253, a petitioner must obtain a certificate of
appealability before he can appeal the district court’s decision to dismiss his
petition. This Court will grant a certificate of appealability only if the petitioner
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). In order to make a substantial showing, a petitioner must demonstrate
that issues are debatable among jurists of reason; that a court could resolve the
issues in a different manner; or that the questions are adequate to deserve
encouragement to proceed further. Lucas v. Johnson, 132 F.3d 1069, 1073 (5th
Cir. 1998). For the reasons stated in this Memorandum and Order, Bonner has not
made a substantial showing of the denial of a constitutional right. Newby v.
Johnson, 81 F.3d 567, 569 (5th Cir. 1996). The Court will deny the issuance of a
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Certificate of Appealability.
V.

CONCLUSION

For the foregoing reasons:
1.

The motion for summary judgment is GRANTED and the petition for
writ of habeas corpus is DISMISSED with prejudice.

2.

A Certificate of Appealability is DENIED.

3.

The Clerk shall terminate all pending motions, if any.

It is so ORDERED.
SIGNED this 15th day of October, 2013.

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Gregg Costa
United States District Judge

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