Rivers v. Stephens
Filing
4
MEMORANDUM OPINION AND ORDER. The 1 Petition for Writ of Habeas Corpus by a Person in State Custody is dismissed with prejudice. A certificate of appealability is denied. (Signed by Judge Sim Lake) Parties notified. (rosaldana, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ERSKIN RIVERS, TDCJ #1369061,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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CIVIL ACTION NO. H-14-1105
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MEMORANDUM OPINION AND ORDER
TDCJ inmate Erskin Rivers has filed a petition for a writ of
habeas corpus (Docket Entry No.1) challenging a nearly eight-yearold state court conviction under 28 U.S.C.
§
2254.
The petition
will be dismissed as successive and untimely.
I.
Procedural History and Claims
Rivers was convicted of murder in 2006.
No. 1030798
State v.
Rivers,
(338th Dist. Ct., Harris County, Tex., May 4, 2006).
The Court of Appeals for the First District of Texas affirmed the
conviction the following year.
Rivers v. State, No. 01-06-00421-
CR, 2006 WL 3293773 (Tex. App. Houston [1st Dist.] Nov. 8, 2007).
The Texas Court of Criminal Appeals refused Rivers' petition for
discretionary review (PDR) on October 29, 2008.
Rivers
filed
an
application
for
a
writ
Id.
of
habeas
corpus
pursuant to article 11.07 of the Texas Code of Criminal Procedure
on October I, 2009 (Docket Entry No. I, p. 4).
The Texas Court of
Criminal Appeals denied the application based on the trial court's
findings without a written order.
Crim. App. Jan. 6, 2010).
Ex parte Rivers, 73,188-01 (Tex.
See Court of Criminal Appeals Website,
http://www.cca.courts.state.tx.us.
Rivers filed a federal petition for a writ of habeas corpus
challenging the murder conviction on or about March 2, 2010.
The
United States District Court for the Southern District of Texas
dismissed the petition on the merits.
0738
(S . D.
Tex.
Feb.
9,
2 011) .
certificate of appealability,
Rivers v. Thaler, No. H-I0-
Rivers
filed
a
motion for
a
which the United States Court of
Appeals for the Fifth Circuit denied.
20169 (5th Cir. Aug. 3, 2011).
Rivers v. Thaler, No. 11-
He then filed a petition for a writ
of certiorari, which was denied by the United States Supreme Court
on February 21, 2012.
Rivers
filed
September 20,
Rivers v. Thaler, No. 11-7722.
a
2013
second
state
(Docket Entry No.
habeas
I,
p.
4)
application
on
The Court of
Criminal Appeals dismissed the habeas application as successive per
article
11.07,
§
4
of
the
Texas
Code
of
Criminal
Procedure.
Ex parte Rivers, 73,188-02 (Tex. Crim. App. Nov. 23, 2013).
Rivers
asserts
that
filed the current petition on April
16,
2014.
He
he was wrongly convicted because he was actually
innocent of the crime.
Rivers also contends that the petition was
delayed because he had to file a second state habeas petition.
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II.
Under
("AEDPA" )
r
Successive Petition
the Anti-Terrorism and Effective
Death
Rivers r
successive
petition is
barred as
a
habeas challenge to a state court conviction.
Penalty Act
28 U.S.C.
§
federal
2244(b).
Because of the prior dismissal on the merits r Rivers 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.
There is no indication that the Fifth Circuit has
granted permission to Rivers to file the current petition.
Without
such authorization r
lack of
jurisdiction.
this action must be dismissed for
Williams v.
Thaler r 602 F.3d 291 r 301
2010); Hooker v. SivleYr 187 F.3d 680 r 681-82
III.
(5th Cir.
(5th Cir. 1999).
Statute of Limitations
In addition to being barred as successive r this action would
be barred as untimely under the AEDPA because Rivers is challenging
a conviction that was final more than five years ago.
U.S.C.
§
§
2244 (d) (1) (A)
See 28
(one-year limitation period for filing of
2254 petition after conviction becomes final).
His conviction
became final on January 27 r 2009 r ninety days after the date the
Court of Criminal Appeals refused his PDR on October 29 r 2008.
Gonzalez v. Thaler r 623 F.3d 222r 225-226 (5th Cir. 2010).
Rivers filed a state habeas application on October lr 2009 r
247 days after his conviction became final.
The Court of Criminal
Appeals denied the application on January 6 r 2010.
The limitations
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----_._-------
----_._---_.._--------------
period
was
tolled
28
application.
during
U.S.C.
the
pendency
of
state
habeas
the
period
However,
2244 (d) (2) .
§
the
recommenced after the Court of Criminal Appeals denied the state
application.
Cir. 1998).
See Flanagan v. Johnson, 154 F.3d 196, 199 n.1 (5th
Consequently, the limitations period expired 118 days
later on May 4, 2010.
Rivers'
previous federal habeas petition did not toll the
limitations period.
Duncan v. Walker, 121 S. Ct. 2120, 2129 (2001)
(application for federal habeas corpus review is not "application
for State post-conviction or other collateral review," within the
meaning of the AEDPA's tolling provision)
F.3d 488 (5th Cir. 1999)
not
toll
limitations
Grooms v. Johnson, 208
His second state habeas application did
because
it
limitations period had expired.
600, 604
i
was
filed
Palacios v.
well
after
Stephens,
the
723 F.3d
(5th Cir. 2013), citing Scott v. Johnsonr 227 F.3d 260,
263 (5th Cir. 2000), citing
§
2244(d) (2).
Habeas petitioners are
usually given an opportunity to respond when a court screening a
federal
habeas petition finds
it
to be untimely.
McDonough, 126 S. Ct. 1675, 1684 (2006)
See Day v.
The court concludes that
a response is not warranted in this case since Rivers' petition is
successive as well as time-barred.
IV.
Certificate of Appealability ("COA")
Before Rivers can appeal the dismissal of his petition, he
must obtain a COA.
28 U.S.C.
§
2253.
In order to obtain a COA
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Rivers must demonstrate that "reasonable jurists would find the
district court1s assessment of the constitutional claims debatable
or wrong."
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).
A COA
shall be denied because this action is clearly barred, and Rivers
has
not
made
a
substantial
constitutional right.
showing
of
the
See Resendiz v. Quarterman,
denial
of
a
454 F.3d 456
(5th Cir. 2006).
V.
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) is
DISMISSED WITH PREJUDICE.
2.
A Certificate of Appealability is DENIED.
3.
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 28th day of April, 2014.
S1M LAKE
UNITED STATES DISTRICT JUDGE
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