Cooper v. Thaler

Filing 5

ORDER OF DISMISSAL WITHOUT PREJUDICE. Case terminated on 7/14/2010. Any and all pending motions DENIED AS MOOT. Certificate of appealability DENIED.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

C o o p e r v. Thaler

Doc. 5

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION W ILLIAM CHARLES COOPER, 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-10-2468

ORDER ON DISMISSAL
W illia m Charles Cooper, a state inmate proceeding pro se and requesting leave to p ro c e ed in forma pauperis, files this section 2254 petition challenging his 2003 conviction f o r burglary of a habitation. After reviewing the pleadings under Rule 4 of the Rules G o v e rn in g Section 2254 Cases in the United States District Courts, the Court concludes that th is case must be dismissed, as follows. Background and Claims P e titio n e r was convicted of burglary of a habitation under cause number 923335 in H a rris County, Texas, on June 6, 2003, and sentenced to forty-five years incarceration. He raises various challenges to that conviction in the instant petition. A review of this Court's re c o rd s reveals that petitioner unsuccessfully challenged this same conviction in Cooper v. Q u a r te rm a n , C.A. H-06-1862 (S.D. Tex. 2007). Petitioner does not state, and public court re c o rd s do not show, that the Fifth Circuit Court of Appeals has authorized him to file a s u c c es s iv e habeas challenge to the conviction.

Dockets.Justia.com

A n a lys is A s amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 2 8 U.S.C. § 2244(b) provides in relevant part: (1 ) A claim presented in a second or successive habeas corpus application u n d e r section 2254 that was presented in a prior application shall be d is m is s e d . A claim presented in a second or successive habeas corpus application u n d e r section 2254 that was not presented in a prior application shall be d is m is s e d unless ­ (A) th e applicant shows that the claim relies on a new rule of c on stitu tio n a l law, made retroactive to cases on collateral review b y the Supreme Court, that was previously unavailable; or (i) the factual predicate for the claim could not have been d is c o v e re d previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light o f the evidence as a whole, would be sufficient to establish by clea r and convincing evidence that, but for constitutional error, n o reasonable factfinder would have found the applicant guilty o f the underlying offense. Although Congress did not define the phrase "second or successive" as used in se c tio n s 2244(b)(1) and (2), it is well settled that the phrase does not simply refer to all sec tio n 2254 applications filed second or successively in time. Magwood v. Patterson, _ _ U .S . __, 2010 WL 2518374, *8 (2010). The Supreme Court has recognized several e x c e p tio n s to the provision. See Panetti v. Quarterman, 551 U.S. 930, 947 (2007) (creating a n exception to section 2244(b) for a second application raising a claim that would have been

(2 )

(B )

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u n rip e had the petitioner presented it in his first application); Stewart v. Martinez-Villareal, 5 2 3 U.S. 637, 643 (1998) (treating a second application as part of a first application where it was premised on a newly ripened claim that had been dismissed from the first application a s premature); Slack v. McDaniel, 529 U.S. 473, 478, 487 (2000) (declining to apply section 2 2 4 4 (b ) to a second application where the district court dismissed the first application for lack of exhaustion). N o exceptions to section 2244(b) are alleged or shown in the instant case. A careful re v iew of petitioner's pending and prior federal habeas petitions shows that this case is s u b je c t to dismissal as an unauthorized successive habeas petition pursuant to section 2 2 4 4 (b). C o n c lu s io n F o r these reasons, habeas relief is DENIED and this petition is DISMISSED W I T H O U T PREJUDICE as successive. Any and all pending motions are DENIED AS M O O T . A certificate of appealability is DENIED. T h e Clerk will provide a copy of this order to the parties. S ig n e d at Houston, Texas, on July 14, 2010.

Gray H. Miller U n ite d States District Judge

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