Crowder v. Stephens
Filing
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MEMORANDUM AND OPINION. A Certificate of Appealability is DENIED. (Signed by Judge Lee H Rosenthal) Parties notified. (wbostic, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOE CROWDER, JR.,
(TDCJ-CID #00703837)
Petitioner,
VS.
WILLIAM STEPHENS,
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CIVIL ACTION NO. H-15-0031
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Respondent.
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MEMORANDUM AND OPINION
The petitioner, Joe Crowder, Jr. has filed a federal petition for a writ of habeas corpus under
28 U.S.C. § 2254. He challenges a 1995 conviction in the 182nd Judicial District Court of Harris
County, Texas. For the reasons discussed below, the court finds that this petition should be
dismissed for lack of jurisdiction because it is a successive petition filed without the Circuit Court's
permIssIOn.
On February 9,1995, a jury of the 182nd Judicial District Court of Harris County, Texas
convicted Crowder of the felony offense of aggravated robbery. (Cause No. 655790). The jury
sentenced Crowder to a 45-year prison term. The Fourteenth Court of Appeals affirmed Crowder's
conviction and sentence on July 27, 1997. The Texas Court of Criminal Appeals refused Crowder's
petition for discretionary review on October 22, 1997.
On November 15,2011, Crowder filed a federal petition (Civil Action No. 4-11-4130)
challenging his conviction and sentence imposed in Cause Number 655790. On February 6, 2013,
the federal court dismissed the petition because it was filed too late.
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On January 6, 2015, this court received Crowder's most recent federal habeas petition
challenging his conviction in Cause Number 655790. This habeas petition must be dismissed
because it is a successive filing.
A district court may raise on its own the issue of whether a habeas corpus petition is
successive. Rodriguez v. Johnson, 104 F.3d 694,697 (5th Cir. 1997). The federal court dismissed
Crowder's earlier federal petition, Civil Action Number 4:11-4130, as time-barred. The dismissal
ofa § 2255 petition as untimely under AEDPA is a "permanent and incurable" bar to federal review
of the merits of the claim. The bar is permanent because, unlike cases in which a habeas or § 2255
petition is dismissed without prejudice for failure to exhaust or as premature, a time-bar cannot be
corrected. A case dismissed as time-barred under AEDPA is an adjudication on the merits that
makes a second petition challenging the same conviction or sentence successive. See In re Flowers,
595 FJd 204 (5th Cir. 2009).
This court lacks jurisdiction to consider Crowder's petition as it is a "successive" application
governed by 28 U.S.c. § 2244(b )(3)(A) (1998), which requires that the Fifth Circuit authorize the
district court to consider the application before it is filed in the district court. The statute states:
"Before a second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court to
consider the application." Before Crowder can file a second or successive application in this court,
he must file a motion for an order authorizing this court to consider his successive application in the
United States Court of Appeals for the Fifth Circuit. There is no indication that the United States
Court of Appeals for the Fifth Circuit has authorized this court to consider Crowder's successive
application. This court lacks jurisdiction to consider Crowder's habeas claims. Crowder's petition
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for a writ of habeas corpus under 28 U.S.C. § 2254 is dismissed for lack of jurisdiction, and any
remaining pending motions are denied as moot.
No Certificate of Appealability will issue. The showing necessary for a Certificate of
Appealability is a substantial showing of the denial of a constitutional right. Hernandez v. Johnson,
213 FJd 243, 248 (5th Cir. 2000) (citing Slack v. McDaniel, 429 U.S. 473, 483 (2000)). An
applicant makes a substantial showing when he demonstrates that his application involves issues that
are debatable among jurists of reason, that another court could resolve the issues differently, or that
the issues are suitable enough to deserve encouragement to proceed further. See Clark v. Johnson,
202 F.3d 760, 763 (5th Cir. 2000). When, as here, the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying constitutional claim, a Certificate of
Appealability should not issue unless the prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling. Ruddv. Johnson, 256 F.3d 317, 319 (5th Cir. 2001) (citing Slack, 529 U.S. at 484). Crowder
has not made the necessary showing. A Certificate of Appealability is denied.
SIGNED on January 20,2015, at Houston, Texas.
Lee H. Rosenthal
United States District Judge
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