Walls v. Thaler, Director TDCJ-CID
Filing
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OPINION ON DISMISSAL Because it is duplicative of another action, Petitioner's Petition for a Writ of Habeau Corpus is DISMISSED without prejudice. All pending motions, if any, are DENIED.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TERRY LEE WALLS,
TDCJ-CID NO. 1247358,
Petitioner,
v.
RICK THALER,
Respondent.
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CIVIL ACTION NO. H-11-4050
OPINION ON DISMISSAL
Petitioner Terry Lee Walls, a state inmate proceeding pro se, seeks habeas corpus
relief pursuant to 28 U.S.C. § 2254 to challenge the revocation of his parole, his latest
conviction, and the execution of the sentence in an earlier conviction. (Docket Entry No.1). For
reasons to follow, the Court will dismiss this action.
DISCUSSION
In June 2004, petitioner was sentenced to twenty-five years confinement in TDCJCID in the 176th Criminal District Court of Harris County, Texas, following his conviction for
possession of cocaine in cause number 982718.1 Petitioner’s conviction was affirmed on direct
appeal and a petition for discretionary review was refused. Walls v. State, No.14-04-00895-CR
(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d May 17, 2006). The Texas Court of Criminal
Appeals denied his state habeas application challenging such conviction without written order on
the trial court’s findings without a hearing on December 12, 2007.2 Petitioner filed another state
habeas application challenging the same conviction, which the Texas Court of Criminal Appeals
dismissed on July 27, 2011.3
1
http://offender.tdcj.state.tx.us/POSdb2/offenderDetail.action?sid=01693713 (viewed December 12, 2011).
2
http://cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2313832 (viewed December 12, 2011).
3
http://cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2452720 (viewed December 12, 2011).
On June 2, 2008, petitioner was released on parole. On July 9, 2010, plaintiff
pled guilty and was convicted of aggravated robbery with a deadly weapon in the 179th Criminal
District Court of Harris County, Texas, in cause number 1232870, for which he was sentenced to
fifteen years in TDCJ-CID. (Docket Entry No.1). As a result of this conviction, petitioner’s
parole from the drug conviction was revoked in August 2010. Petitioner provides no details
regarding the revocation. (Id.). Petitioner did not appeal the aggravated robbery conviction, but
on November 10, 2010, he filed a state habeas application, which is pending in state district
court.4 Thereafter, on May 12, 2011, petitioner filed a federal habeas petition, seeking relief
from the aggravated robbery conviction. Walls v. Thaler, Civil Action No.4:11cv1816 (S.D.
Tex.). Such petition is presently pending in this Court.
On November 17, 2011, petitioner filed the present federal habeas petition.
(Docket Entry No.1). He seeks relief from the parole revocation hearing because he was not
given notice; he also seeks federal habeas relief from the aggravated robbery conviction on the
following grounds:
1.
The testimony given by Chemist James Harris was tainted because
Harris was convicted of stealing cocaine from the Houston Police
Department’s crime lab in June 2010;
2.
A City of Houston Police Officer failed to lift the fingerprints of
the passenger in petitioner’s vehicle at the time of petitioner’s
arrest; and,
3.
TDCJ has not enforced the plea agreement that petitioner’s two
sentences would run concurrently.
4
http://www.hcdistrictclerk.com/edocs/public/CaseDetailsPrinting.aspx?Get=qsxHYf5WT (viewed December 12,
2011).
2
(Id.). Petitioner indicates that he is presenting these claims for the first time in the present
petition because they were not committed at the time of his last federal writ, which was filed on
May 12, 2011. (Id.).
At first glance, the pending petition appears to be a second or successive petition.
See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (stating that second or successive petition is
one that either “raises a claim challenging the petitioner’s conviction or sentence that was or
could have been raised in an earlier petition,” or “otherwise constitutes an abuse of the writ”).
Although petitioner claims otherwise, his pleadings show that the issues set out in the present
action could have been raised in Civil Action No.4:11cv1816. Nevertheless, to be “second or
successive,” the petition must be filed subsequent to the conclusion of a proceeding that counts
as the first. Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002). “A petition that has
reached final decision counts for this purpose.” Id. While the present petition was filed after
Civil Action No.4:11cv1816, it is not successive because Civil Action No.4:11cv1816 is an
active case, i.e., the proceedings in such case have not reached a final conclusion.
Instead, the present petition is subject to dismissal because it is duplicative of the
petition filed in Civil Action No.4:11cv1816. A suit is duplicative if it involves the “same
claims, parties, and available relief.” Chrysler Credit Corp. v. Marino. 63 F.3d 574, 578 (7th
Cir. 1995). Although the specific issues raised in the present petition differ from those in Civil
Action No.4:11cv1816, the parties, the operative facts, the convictions, and the available relief in
this action are the same as those in Civil Action No.4:11cv1816.
“It has long been recognized that there is a ‘power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
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counsel, and for litigants.’” Remington Rand Corp. v. Bus. Sys. Inc., 830 F.2d 1274, 1275-76 (3d
Cir. 1987) (quoting Landis v. N. Amer. Co., 299 U.S. 248, 57 S.Ct. 163, 166, 81 L.Ed. 153
(1936)). Therefore, a district court may dismiss an action when it is duplicative of another action
filed in federal court. Id. Given the pendency of Civil Action No.4:11cv1816, this Court will
exercise its inherent powers and dismiss the present petition as duplicative.
CONCLUSION
Because it is duplicative of another action, petitioner’s Petition for a Writ
of Habeas Corpus by a Person in State Custody (Docket Entry No. 1) is DISMISSED without
prejudice. All pending motions, if any, are DENIED.
SIGNED at Houston, Texas, this 14th day of December, 2011.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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