Winfrey v. Stephens
Filing
6
MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Writ of Habeas Corpus, granting 3 APPLICATION to Proceed In Forma Pauperis. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CLIFFORD NEAL WINFREY, JR.,
TDCJ NO. 1365252,
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Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-14-3449
MEMORANDUM OPINION AND ORDER
Clifford Neal Winfrey, Jr., has filed a federal Petition for
a Writ of Habeas Corpus By a Person in State Custody ("Petition")
(Docket Entry No.1) challenging a state court felony conviction.
The Petition will be dismissed as successive.
Winfrey's habeas Petition challenges a felony conviction and
40-year sentence for murder.
State v. Weems, No. 10298859 (174th
Dist. Ct., Harris County, Tex.).
that
he
was
denied
(Docket Entry No.1,
effective
p.
6)
His sole ground for relief is
assistance
counsel
at
trial.
Winfrey asserts that he entered a
guilty plea to the trial court.
Id. at 3.
him guilty and pronounced his sentence,
appeal of the conviction.
of
After the court found
Winfrey filed a direct
The Court of Appeals for the First
District of Texas affirmed the trial court's judgment.
Winfrey v.
State, No. 01-06-00473, 2007 WL 1844425 (Tex. App.
Dist.]
2005,
pet.
Winfrey then
ref'd).
Discretionary Review
(PDR) ,
which the
filed
Texas
-- Hous.
a
[1st
Petition for
Court
of
Criminal
No Petition for a Writ of
Appeals refused on January 16, 2008.
Certiorari was filed.
Winfrey filed a state application for a writ of habeas corpus,
which the Texas Court of Criminal Appeals dismissed because his
direct appeal was still pending.
(Tex.
Crim.
App.
June 4,
habeas application,
2008).
Ex parte Winfrey, No. 69,907-01
He then filed a
second state
which the Court of Criminal Appeals denied
without a written order.
Crim. App. April 9,
Ex parte Winfrey,
2014)
No.
69,907-04
(Tex.
See Texas Court of Criminal Appeals
Website, http://www.cca.courts.state.tx.us/.
On January 17, 2013, during the pendency of the second state
habeas application, Winfrey filed a federal petition for a writ of
habeas
corpus
in
which
effective assistance of
No. H-13-0253
he
also
contends
counsel at
(S.D. Tex.).
trial.
that
he
was
Winfrey v.
denied
Thaler,
The federal district court issued an
order staying the proceedings pending the outcome of the state
habeas action.
the court.
The federal habeas petition is still pending before
Id.
This action is subject to the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), which bars as successive federal habeas
challenges to a state court conviction.
-2 -
28 U.S.C.
§
2244(b).
The
primary purpose of this requirement is to prevent petitioners, such
as Winfrey,
sentences.
2000),
from repeatedly at tacking the same convictions and
See United States v. Key, 205 F.3d 773, 774 (5th Cir.
citing In re Cain,
137
F. 3d 234,
235
(5th Cir.
1998).
Because of the prior federal petition, Winfrey must first obtain
permission from the United States Court of Appeals for the Fifth
Circuit
§
before
2244 (b) (3);
2009).
filing
another
habeas
Propes v. Quarterman,
petition.
573 F.3d 225,
28
229
U.S.C.
(5th Cir.
There is no indication that the Fifth Circuit has granted
permission for Winfrey to file the current Petition.
authorization,
jurisdiction.
1999) .
this
action
Hooker v.
The dismissal
must
Sivley,
be
dismissed
187 F.3d 680,
Without such
for
681-82
lack
of
(5th Cir.
is without prejudice to Winfrey seeking
relief in Cause No. H-13-0253.
If Winfrey seeks to appeal the dismissal of his Petition, he
must first obtain a Certificate of Appealability
U.S.C.
2011).
§
2253;
Cardenas v.
Thaler,
651 F.3d 442,
(COA).
443
See 28
(5th Cir.
In order to obtain a COA, Winfrey must demonstrate that
"reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong."
120
s.
Ct. 1595, 1604 (2000).
Slack v. McDaniel,
A COA shall be denied because this
action is clearly barred, and Winfrey has not made a substantial
showing of the denial of a constitutional right.
Quarterman, 454 F.3d 456 (5th Cir. 2006).
-3-
See Resendiz v.
Conclusion and Order
The court ORDERS the following:
1.
This Petition for a Writ of Habeas Corpus by a
Person in State Custody (Docket Entry No.1) is
DISMISSED WITHOUT PREJUDICE.
2.
The petitioner's Application to Proceed In Forma
Pauperis (Docket Entry No.3) is GRANTED.
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 of the State of Texas.
SIGNED at Houston, Texas, on this 4th day of December, 2014.
UNITED STATES DISTRICT JUDGE
-4-
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