Owens v. Stephens

Filing 5

MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Petition for Writ of Habeaus Corpus, granting 2 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
THERON GREGORY OWENS,
TDCJ NO. 1734133,
Petitioner,
v.

WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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CIVIL ACTION NO. H-15-0293

MEMORANDUM OPINION AND ORDER

Theron Gregory Owens, has filed a federal petition for a writ
of habeas corpus challenging a state court felony conviction.

The

petition will be dismissed as successive.
Owens's habeas petition challenges a
life sentence for capital murder.

felony conviction and

State v.

(178th Dist. Ct., Harris County, Tex.).

Owens,

No.

1167769

After being found guilty

and sentenced, Owens filed an appeal arguing that the trial court
erred in not suppressing his statements.

He also argued that the

trial court erred in denying his motion for mistrial.

The Court of

Appeals for the Fourteenth District of Texas affirmed the trial
court's judgment.

Owens v.

State,

No.

14-11-00676-CR,

1499574 (Tex. App.-Hous. [1st Dist.] 2013, pet. ref'd).

2013 WL

Owens then

filed a Petition for Discretionary Review (PDR) , which the Texas
Court of Criminal Appeals refused on August 21,
State, No.

PD-0573-13.

On January 13,

2014,

2013.

Owens v.

the United States

Supreme Court denied Owens's Petition for a Writ of Certiorari.
Owens v. Texas, 134 S.Ct. 952 (2014).
Owens asserts that he filed a state application for a writ of
habeas corpus alleging that evidence was obtained and admitted in
violation of his constitutional rights (Docket Entry No. I, p. 4).
He also alleged prosecutorial misconduct and false testimony.

Id.

Available records reflect that the Court of Criminal Appeals denied
the

application

without

a

written

Ex

order.

No. 82,050-01 (Tex. Crim. App. Sept. 24, 2014)

parte

Owens,

See Texas Courts

Website, http://www.search.txcourts.gov/.
On January 20, 2015, Owens filed a federal petition for a writ
of habeas corpus challenging the same capital murder conviction and
raising

claims

similar

to

those

raised

action.

in

Owens v. Stephens, No. H-15-0173

the

present

(S.D. Tex.).

issued an order directing the State to file a

habeas

The court

response to the

petition, and the federal habeas petition is still pending before
the court.

Id.

This action is subject to the Anti-Terrorism and Effective
Death Penalty Act (AEDPA) which bars as a successive federal habeas
challenges to a state court conviction.

28 U.S.C.

§

2244(b).

The

primary purpose of this requirement is to prevent petitioners, such
as

Owens,

sentences.
2000),

from

repeatedly

attacking

the

same

convictions

and

See United States v. Key, 205 F.3d 773, 774 (5th Cir.

citing

In re

Cain,

137

F.3d 234,

Because of the prior federal petition,

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235

(5th Cir.

1998).

Owens must first obtain

permission from the United States Court of Appeals for the Fifth
Circuit
§

before

filing

another

habeas

2244 (b) (3); Propes v. Quarterman,

2009).

28

petition.

573 F.3d 225,

229

U.S.C.

(5th Cir.

There is no indication that the Fifth Circuit has granted

permission for Owens to file the current petition.
authorization,
jurisdiction.
1999).

this

action

Hooker v.

must

Sivley,

be

dismissed

187 F. 3d 680,

Without such
for

681-82

lack

of

(5th Cir.

The dismissal is without prejudice to Owens seeking relief

in Cause No. H-15-0173.
If Owens seeks to appeal the dismissal of his petition, he
must

first

28 U.S.C.
2011) .

§

obtain a

Certificate

of Appealability

(COA).

See

2253; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir.

In order to obtain a COA,

Owens 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).

action is clearly barred,

Slack v. McDaniel,

A COA will be denied because this

and Owens has not made a substantial

showing of the denial of a constitutional right.

See Resendiz v.

Quarterman, 454 F.3d 456 (5th Cir. 2006).
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.2) is GRANTED.

3.

A Certificate of Appealability is DENIED.

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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, Attention: Habeas Corpus
Division, P.O. Box 12548, Capitol Station, Austin, Texas
78711-2548.

SIGNED at Houston, Texas, on this 5th

February, 2015.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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