Williams v. Director - Texas Department of Criminal Justice, Correctional Institutions Division

Filing 7

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CHARLES WILLIAMS,
TDCJ #738507,

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§
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Petitioner,
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v.
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RICK THALER, Director,
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Texas Department of Criminal Justice– §
Correctional Institutions Division,
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CIVIL ACTION NO. H-13-0710

Respondent.
MEMORANDUM AND ORDER
The petitioner, Charles Williams (TDCJ), is a state inmate incarcerated in
the Texas Department of Criminal Justice – Correctional Institutions Division
(collectively “TDCJ Williams seeks a writ of habeas corpus challenging a state
”).
conviction under 28 U.S.C. § 2254.

After reviewing the pleadings, Williams’

litigation history, and the applicable law under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, the Court concludes that
this case must be dismissed for the reasons set forth below.
I.

BACKGROUND
Williams alleges that he was coerced into accepting a plea bargain

agreement regarding a murder charge in 1995. The court records show that he was

found guilty of the charge and sentenced to thirty years imprisonment in the TDCJ.
State v. Williams, No. 94-9406948 (185th Dist. Ct., Harris County, Tex. Nov. 30,
1995).

The Fourteenth Court of Appeals affirmed the conviction. Williams v.

State, 964 S.W.2d 747 (Tex. App. – Houston [14th Dist.] 1998). The Texas Court
of Criminal Appeals denied his petition for discretionary review (PDR on
“ ”)
September 30, 1998. Williams v. State, PDR No. 0686-98.
On September 22, 2004, Williams filed a petition for a writ of habeas
corpus, under 28 U.S.C.§ 2254. The federal district court found that there were no
further appeals or state post conviction challenges pursuant to article 11.07 of the
Texas Code after the PDR was refused. Williams v. Dretke, Civil No. H-04-3799
(S.D. Tex.). Consequently, the court dismissed the petition as untimely pursuant to
28 U.S.C. § 2244(d) because it was filed more than one year after the conviction
was final. Id.
Williams claims that he filed a motion for DNA testing in state district court
on June 23, 2003, and that the trial court appointed attorney Jeffrey Hale to
represent him on June 27, 2003. Doc. #1, at 2. Six years later, Hale withdrew
from the case on November 5, 2009, and was replaced by attorney Kelly Smith on
November 9, 2009.

Williams states that the trial court ordered DNA testing

pursuant to Chapter 64 of the Texas Code of Criminal Procedure on October 11,
2010.

Williams further states that when the DNA testing on fifteen items was

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completed two years later, all but two of the items exonerated him. The two items
were Williams’s shoes which had the victim’s DNA on them.

Doc. #1, at 2.

Williams contends that the evidence does not implicate him because it is consistent
with his statements to law enforcement officials that he did make an examination
to see if the victim was still conscious.

However, the trial court disagreed and

held that Williams failed to show that it was reasonably probable that he would not
have been convicted for murder if the DNA results had been available before or
during his trial in cause number 9406948. Id. at 11. Williams seeks retesting of
the DNA sample by the Federal Bureau of Investigation’s laboratories in Quantico,
Virginia or some other forensic laboratory agreed upon by the parties.
II.

DISCUSSION
Williams’s federal habeas petition is subject to the gate keeping provisions of

the Antiterrorism and Effective Death Penalty Act (
“AEDPA which requires
”)
advance permission from the appropriate court of appeals before a second or
successive petition can be filed in district court. 28 U.S.C. 2244(b)(3)(A); Propes
v. Quarterman, 573 F.3d 225, 229 (5th Cir. 2009); Crone v. Cockrell, 324 F.3d
833, 836 (5th Cir. 2003), (citing United States. v. Key, 205 F.3d 773, 774 (5th Cir.
2000)). This prevents repeated habeas filings which challenge the same underlying
conviction. Williams v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010) (citing Leal
Garcia v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009).

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Under Chapter 64 of the Texas Code of Criminal Procedure, Williams has an
enforceable right to DNA testing. See Skinner v. Switzer, 131 S.Ct. 1289, 1293
(2011); District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S.
52, 67-73 (2009). However, the trial court granted Williams’s motion for DNA
testing and concluded that the results did not exonerate him. Having previously
filed a federal petition which was rejected, Williams must first obtain permission
from the United States Court of Appeals for the Fifth Circuit before filing another
petition in district court regarding the outcome of the DNA test. See Landrigan v.
Trujillo, 623 F.3d 1253, 1258 (9th Cir. 2010). Without such authorization, this
action must be dismissed for lack of jurisdiction. Hooker v. Sivley, 187 F.3d 680,
681-82 (5th Cir. 1999).
The Court notes that Williams filed this action pursuant to 28 U.S.C. § 2241
which is the general habeas statute. It is possible that he drafted his petition in this
manner to evade section 2244(b)(3)(A)’s restrictions against successive petitions.
However, there is only one “gate to federal habeas relief from state custody which is
”
available under 28 U.S.C. § 2254. Rittenberry v. Morgan, 468 F.3d 331, 337-38
(6th Cir. 2006).

Williams must comply with the provisions of section

2244(b)(3)(A) regardless of how he presents his new challenge to the state court’s
ruling. See Hernandez v. Thaler, 630 F.3d 420, 427 (5th Cir. 2011). This Court

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dismisses this proceeding for lack of jurisdiction because the Fifth Circuit has not
granted authorization. Key, 205 F.3d at 775.
III.

CERTIFICATE OF APPEALABILITY
Because the habeas corpus petition filed in this case is governed by the

AEDPA, a certificate of appealability is required before an appeal may proceed.
See 28 U.S.C. § 2253; Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997).
This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless
a circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals . . . .’ Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
”
(citing 28 U.S.C.§ 2253(c)(1)).
A court may deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir.
2008). This Court concludes that jurists of reason would not debate whether the
procedural ruling in this case was correct. Resendiz v. Quarterman, 454 F.3d 456
(5th Cir. 2006). Accordingly, to the extent that one is needed, a certificate of
appealability will not be issued in this case.

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IV.

CONCLUSION
Because the pending federal habeas corpus petition is successive and lacking

in jurisdiction, the Court ORDERS as follows:
1.

This habeas corpus proceeding is DISMISSED without prejudice for
lack of jurisdiction.

2.

A certificate of appealability is DENIED.

The Clerk is directed to provide a copy of this Memorandum and Order to
the petitioner; and a copy of the petition and this Memorandum and Order to the
Attorney General of the State of Texas.
SIGNED at Houston, Texas on April 4, 2013.

________________________________
NANCY F. ATLAS
UNITED STATES DISTRICT JUDGE

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