Williams v. Thaler

Filing 7

MEMORANDUM OPINION AND ORDER GRANTING 5 MOTION to Dismiss for Lack of Jurisdiction as a Successive Petition with Brief in Support. Any and all pending motions DENIED AS MOOT. Certificate of appealability DENIED.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION D AMIEN JERMAINE WILLIAMS, P e titio n e r , v. R ICK THALER, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-10-0125

MEMORANDUM OPINION AND ORDER
P e titio n e r, a state inmate proceeding pro se, filed this section 2254 petition c h a lle n g in g his conviction for aggravated robbery. Respondent filed a motion to dismiss for w a n t of jurisdiction, arguing that the petition is an unauthorized successive petition. (Docket E n try No. 5.) Respondent served petitioner a copy of the motion on March 19, 2010, as re f le c te d on the certificate of service. Id., p. 10. Despite expiration of a reasonable time in e x c e s s of fifty days, petitioner has failed to respond to the motion to dismiss. B a se d on consideration of the motion, the pleadings, public court records, and the a p p lic a b le law, the Court GRANTS the motion to dismiss and DISMISSES this lawsuit for w a n t of jurisdiction. B a c k g ro u n d P e titio n e r was convicted of aggravated robbery in May of 2005, under cause number 9 7 5 6 6 4 in Harris County, Texas, and sentenced to twenty-five years incarceration. The state c o u rts affirmed the conviction and denied habeas relief. Petitioner filed a federal habeas

p e titio n in August of 2008, challenging a prison disciplinary conviction; this petition remains p e n d in g . Williams v. Thaler, C.A. No. 5:08-cv-0140 (E.D. Tex. 2008). In the instant federal lawsuit, petitioner complains that the court failed to exclude h e a rs a y testimony, and that trial counsel was ineffective in failing to preserve error regarding th e hearsay; in failing to investigate, interview and/or subpoena witnesses; and in failing to fo llo w the contemporaneous objection rules. Respondent argues that petitioner was aware o f these issues in August of 2008 when he filed his disciplinary conviction habeas challenge, a n d that, because he failed to raise those issues in his 2008 federal petition, the instant p e titio n is successive pursuant to Propes v. Quarterman, 573 F.3d 225, 229 (5th Cir. 2009). R e s p o n d e n t states that this petition must be dismissed, as petitioner has not obtained p e rm is s io n from the Fifth Circuit to pursue a successive petition. Petitioner, not having re s p o n d e d to the motion, does not dispute respondent's arguments. Analysis In Propes, the Fifth Circuit determined that a state inmate's section 2254 petition c h a lle n g in g a conviction was successive, as [ t]h e alleged errors in Propes's conviction, which are the targets of the ch allen g e he now presents in a second habeas filing, occurred before Propes's m a d e his first habeas filing. That fact makes the second habeas petition s u c c e s s iv e . 573 F.3d at 229 (citations omitted). In Propes, the first federal habeas petition had

c h a llen g e d not the state conviction, but a prison disciplinary conviction. Such is the case in th e instant habeas proceeding; petitioner filed his disciplinary conviction challenge in August 2

o f 2008, and filed the instant habeas challenge to his state conviction in 2010. Petitioner k n e w of the instant habeas errors no later than January of 2008, as the claims were raised in h is state habeas proceeding. Ex parte Williams, WR-69,574-01 (filed January 8, 2008). A c c o rd in g ly, the instant habeas petition falls squarely within the parameters of a successive f e d era l habeas petition set forth in Propes, and must be dismissed unless petitioner has o b ta in e d authorization from the Fifth Circuit to pursue this case. As neither petitioner nor a s review of public records for the Fifth Circuit show that such authorization has been g ra n te d , the instant case is an unauthorized successive petition. Conclusion T h e petition is DISMISSED FOR WANT OF JURISDICTION as an unauthorized s u c c es s iv e petition. Any and all pending motions are DENIED AS MOOT. A certificate of a p p e a la b ility is DENIED. T h e Clerk will provide copies of this order to the parties. S ig n e d at Houston, Texas, on May 14, 2010.

Gray H. Miller U n ite d States District Judge

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