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)

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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 3

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