Whitson v. Stephens
Filing
4
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis; dismissing with prejudice 1 Petition for Writ of Habeas Corpus; and denying COA. (Signed by Judge Sim Lake) Parties notified.(glyons, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN EUGENE WHITSON,
TDCJ-CID NO. 413857,
§
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§
§
§
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§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-13-2553
MEMORANDUM OPINION AND ORDER
TDCJ inmate John Eugene Whitson has filed a Petition for a
Writ of Habeas Corpus By a Person in State Custody (Docket Entry
No.1) challenging a twenty-seven year old state court conviction
under
28
U.S.C.
§
2254.
The
petition
will
be
dismissed
as
successive and untimely.
Whitson was convicted of burglary of a building in 1986.
State v. Whitson, No. 451583 (263rd Dist. Ct., Harris County, Tex.,
Jan. 14, 1986).
The Court of Appeals for the Fourteenth District
of Texas affirmed the conviction the following year.
Whitson v.
State, No. A14-86-052-CR, 1986 WL 10971 (Tex. App. -- Houston [14th
Dist.] Oct. 2, 1986).
Whitson filed numerous post-conviction challenges in the state
courts including an application for writ of mandamus and seven
applications for a state writ of habeas corpus, all of which were
either denied or were dismissed by the Texas Court of Criminal
Appeals as successive per article 11.07, § 4 of the Texas Code of
Criminal Procedure.
Feb. 19, 2003)
(Tex.
Crim.
Ex
parte
Whitson,
1990 )
App.
Oct.
1,
9,790-06
Ex parte Whitson,
( deni e d);
Feb. 15, 1989)
9,790-08
(Tex. Crim. App.
(dismissed as successive); Ex parte Whitson, 9,790-
07
(denied);
Ex parte Whitson,
1997)
(Tex.
(dismissed
Crim.
9,790-05
.=:E""x"---....tp"-'a"-'r=--'='t.",e'---"Wh.:..:i=...;t""'s=o.:.=n,
....
as
App.
(Tex.
Jan.
Crim.
9,790-04
successive);
25,
App.
(Tex.
1995)
June 13,
Crim.
App.
(denied); Ex parte Whitson, 9,790-03, 9,790-02 (Tex.
Crim. App. Jan. 6, 1988)
(denied); Ex parte Whitson, 9,790-01 (Tex.
Crim. App. Apr. 15, 1989)
(denied).
Whitson also filed a request
for appointment of counsel for assistance in filing a motion for
DNA testing,
2002.
28,
See Whitson v. State, No. 14-02-01168-CR, 2002 WL 31718882
(Tex. App.
court
which the state trial court granted on August
-- Houston
later
denied
[14th Dist.]
Whitson's
Dec.
request
5,
2002).
for
DNA
However,
testing
the
after
determining that he did not meet his burden of demonstrating that
there
was
evidence
available
that
could be
tested.
Id.
The
Fourteenth Court of Appeals dismissed Whi tson' s appeal as untimely.
Id.
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whitson has also submitted numerous filings in federal courts
collaterally attacking his 1986 burglary conviction.
He filed his
first federal petition for a writ of habeas corpus on September 4,
1991, and the petition was dismissed on the merits.
Collins, No. H-91-2554 (S.D. Tex. Mar. 23, 1993).
appeal,
Whitson v.
Whitson filed an
which the United States Court of Appeals for the Fifth
Whitson v.
Circuit dismissed as untimely.
(5th Cir. July 9, 1993).
Collins,
No.
93-2422
Whitson filed a second habeas petition in
the Western District of Texas challenging a forfeiture of good-time
credit.
That petition was dismissed for failure to state a claim.
Whitson v. Scott, No. W-95-CA-077
Fifth
Circuit
Whitson v.
dismissed
Johnson,
the
(W.D. Tex. Sep. 1, 1995).
subsequent
appeal
81 F.3d 155, 1996 WL 101360
(not selected for publication).
as
The
frivolous.
(5th Cir.
1996)
Whitson filed another federal
habeas petition in the Southern District of Texas on October 26,
1995.
See Whitson v. Johnson, No. H-95-5023 (S.D. Tex.).
petition he raised the following claims for relief:
assistance of counsel,
ineffective
lack of probable cause to arrest,
probable cause to indict,
In that
lack of
fundamentally defective complaint, and
failure to quash defective enhancement.
Id.
The court found that
most of the grounds had been previously raised in the first federal
petition and dismissed the 1995 petition for abuse of writ.
Id.
The Fifth Circuit denied Whitson's subsequent application for a
certificate of appealability.
Whitson v.
(5th Cir. Jan. 24, 1997).
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Johnson,
No.
96-20842
Whitson's
current
grounds for relief:
the
denial
of
habeas
petition
includes
the
following
the prosecution's censorship of its witnessesi
DNA
evidence,
improper
and
See Docket Entry No.
ineffective assistance of counsel.
identification,
I-I,
pp. 1-3.
Under the Anti-Terrorism and Effective Death Penalty Act
(AEDPA),
the present action is barred as a
habeas challenge to a state court conviction.
successive
28 U.S.C.
§
federal
2244(b).
Because of the prior dismissal on the merits, Whitson must first
obtain permission from the United States Court of Appeals for the
Fifth Circuit before filing another habeas petition.
§
2244(b) (3).
28 U.S.C.
Whitson has previously filed a federal petition for
a writ of habeas corpus, which was dismissed because it included
claims that had been previously raised.
See No. H-95-5023.
There
is no indication that the Fifth Circuit has granted permission to
Whitson to file the current petition.
Without such authorization
this action must be dismissed for lack of jurisdiction.
v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010)
Williams
Hooker v. Sivley, 187
i
F.3d 680, 681-82 (5th Cir. 1999).
In addition to being barred as successive,
the court also
concludes that this action would be barred as untimely under the
AEDPA because Whitson is challenging a conviction that was final
more than twenty-five years ago.
See 28 U.S.C.
(one-year limitation period for filing of
conviction becomes final).
§
§
2244(d) (1) (A)
2254 petition after
His previous federal habeas petitions
-4-
did not toll the limitations period.
2120, 2129 (2001)
not
Duncan v. Walker, 121 S. Ct.
(application for federal habeas corpus review is
"application for State post-conviction or other collateral
review,
Grooms
wi thin the meaning of the AEDPA's tolling provision)
II
v.
Johnson,
208
F.3d
488
(5th
Cir.
i
Habeas
1999).
petitioners are usually given an opportunity to respond when the
court screening their federal habeas petitions finds them to be
untimely.
See Day v. McDonough, 126 S. Ct. 1675, 1684 (2006)
The
court finds that a response is not warranted in this proceeding
since Whitson's petition is successive as well as time-barred.
Before Whitson can appeal the dismissal of his petition, he
must obtain a COA.
28 U.S.C.
§
2253.
In order to obtain a COA
Whitson must demonstrate that "reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong.
II
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).
A COA
will be denied because this action is clearly barred, and Whitson
has
not
made
a
substantial
constitutional right.
showing
See Resendiz v.
of
the
Quarterman,
denial
of
454 F.3d 456
(5th Cir. 2006)
Conclusion and Order
The court ORDERS the following:
1.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No.1) will
be dismissed with prejudice.
2.
Petitioner's Application to Proceed In
Pauperis (Docket Entry No.2) is GRANTED.
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a
Forma
3.
A Certificate of Appealability is DENIED.
4.
The Clerk will provide a copy of this Memorandum
Opinion and Order to the petitioner; and a copy of
the petition and this Memorandum Opinion and Order
to the Attorney General for the State of Texas.
SIGNED at Houston, Texas, on this 2nd day of October, 2013.
UNITED STATES DISTRICT JUDGE
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