Parker v. Stephens
Filing
18
MEMORANDUM OPINION AND ORDER granting 11 MOTION for Summary Judgment with Brief in Support, dismissing without prejudice 1 Petition for Writ of Habeas Corpus. 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
STEVE VIC PARKER, a/k/a JERRY
WILSON, TDCJ NO. 590690,
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-15-1067
MEMORANDUM OPINION AND ORDER
The petitioner, Steve Vic Parker, also known as Jerry Wilson
(TDCJ No. 590690), seeks a writ of habeas corpus under 28 U.S.C.
§
Pending
2254 to challenge the administration of his sentence.
before the court is Respondent's Motion for Summary Judgment with
Brief in Support
No. 11).
("Motion for Summary Judgment")
(Docket Entry
The petitioner has filed Objections in Response to the
Respondent's Motion for Summary Judgment
(Docket Entry No.
17).
After considering all of the pleadings, the state court records,
and the applicable
law,
motion and will dismiss
the court will grant
this
action for
the
the
respondent's
reasons
explained
below.
I.
The
petitioner
is
Background
currently
incarcerated
by
the
Texas
Department of Criminal Justice - Correctional Institutions Division
("TDCJ")
as
conviction.
the
result
of
more
than
one
underlying
criminal
Complicating the administration of his sentence is the
fact that the petitioner has been convicted under more than one
name.
On April 25, 1991, the petitioner was convicted under the name
"Jerry Wilson a/k/a Steve Parker" of unauthorized use of a motor
vehicle
in
Bell
County
cause
number
39,082. 1
received a 20-year prison sentence in that case. 2
was released on parole in 1992. 3
petitioner was
convicted on
"Steve Vic Parker,
i,
The
petitioner
The petitioner
While on supervised release the
October
13,
2010,
under
the
name
of two counts of theft in McLennan County cause
number 2010-447-C1. 4
The petitioner was sentenced to serve seven
years on each count to run consecutively to the 20-year sentence
that the petitioner received in 1991 in Bell County cause number
39,082. 5
The petitioner challenged the calculation of his consecutive
sentences by filing several time-credit disputes with TDCJ pursuant
1Judgment on Plea of Guilty or Nolo Contendere Before Court
[and] Waiver of Jury Trial, Exhibit B to Motion for Summary
Judgment, Docket Entry No. 11-3, p. 2.
2Id.
3Affidavit of Charley Valdez ("Valdez Affidavit"), Exhibit C
to Motion for Summary Judgment, Docket Entry No. 11-4, p. 3.
4Judgment of Conviction by Jury Nunc Pro Tunc, Exhibit A to
Motion for Summary Judgment, Docket Entry No. 11-2, pp. 2, 4.
5Id.
-2-
to
§
501.0081 of the Texas Government Code. 6
An administrative
official reviewed the petitioner's records and found "no error in
his current time calculations."?
In 2013 the petitioner filed a federal habeas corpus action
challenging the calculation of his stacked sentences.
v. Thaler,
Civil Action No.
H-13-0974
(S.D. Tex.).
See Wilson
He raised a
number of claims concerning the commencement of his seven-year
sentence for theft and the effect on his eligibility for mandatory
supervision with respect to the 20-year sentence that he received
for unauthorized use of
a
motor vehicle. 8
The district court
denied relief and dismissed the petition with prejudice on February
24, 2014.
The petitioner's appeal was dismissed as untimely filed.
See Wilson v. Thaler, No. 14-20274 (5th Cir. July 23, 2014).
On April 23, 2015, the petitioner filed this federal habeas
action
raising
consecutive
another
sentences. 9
challenge
Noting
to
that
the
calculation
TDCJ
intake
of
his
personnel
processed him in 2010 as Steve Vic Parker and then re-processed him
in 2011 as Jerry Wilson, the petitioner argues that his sentences
6Valdez Affidavit, Exhibit C to Motion for Summary Judgment,
Docket Entry No. 11-4, p. 5.
?Id.
8See Memorandum of Law, attached to Petition,
No. 1-2, in Civil Action No. H-13-0974.
Docket Entry
9Petition for a Writ of Habeas Corpus By a Person in State
Custody ("Petition"), Docket Entry NO.1.
-3-
were "started and stopped and restarted illegally."lo
Reasoning
further that a prisoner cannot be required to serve a sentence "in
installments,"
"void." 11
the
petitioner
Arguing that
argues
that
his
the petitioner could have
sentences
are
raised these
claims in the federal habeas corpus proceeding that he filed in
2013, the respondent moves for summary judgment on the grounds that
the Petition is a
U.S.C.
successive application that
is barred by 28
2244(b) for lack of authorization.
§
II.
Discussion
This case is governed by the Anti-Terrorism and Effective
Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C.
§
2244(b), which was enacted to make it "significantly harder for
prisoners filing second or successive federal habeas applications
under 28 U.S.C.
claims."
§
2254 to obtain hearings on the merits of their
Graham v. Johnson,
Before a
168 F.3d 762,
772
(5th Cir.
1999).
second or successive application is filed in district
court, the applicant must move in the appropriate court of appeals
for
an
order
application.
authorizing
28 U.S.C.
§
the
district
2244(b) (3) (A).
court
to
consider
the
If the pending petition
qualifies as a successive writ, this court has no jurisdiction to
consider it absent prior authorization from the Fifth Circuit.
lOMemorandum in Support, Docket Entry No.2, pp. 1-2.
11Id.
-4-
The
Fifth
Circuit
has
recognized
that
"a
prisoner's
application is not second or successive simply because it follows
an earlier federal petition."
Cir.
1998)
successive"
Instead,
when
it:
a
In re Cain, 137 F.3d 234, 235 (5th
subsequent
(1 )
"raises
application
a
claim
is
"second or
challenging
the
petitioner's conviction or sentence that was or could have been
raised in an earlier petition"; or (2)
abuse of the writ."
"otherwise constitutes an
Id.; see also United States v. Orozco-Ramirez,
211 F.3d 862, 867 (5th Cir. 2000).
The claim presented in this case arises from the petitioner's
allegation that his consecutive sentences started and stopped when
he was processed twice
names.
--
in 2010 and 2011
under different
The petitioner knew the facts necessary to challenge the
administration of his consecutive sentences before he filed his
previous federal petition in 2013. 12
His pending Petition therefore
qualifies as a second or successive application within the meaning
of 28 U.S.C.
§
2244(b).
See Crone v. Cockrell, 324 F.3d 833, 837-
38 (5th Cir. 2003).
Because the pending petition is successive, the petitioner is
required to seek authorization from the Fifth Circuit before this
court can consider his application.
See 28 U.S.C.
§
2244(b) (3) (A).
12A review of the Petition filed in 2013 shows that the
petitioner included facts about being processed and reprocessed
under different names and TDCJ identification numbers in support of
his claim for relief.
See Statement of the Facts, attached to
Petition, Docket Entry No. I-I, pp. 2-3, in Civil Action No. H-130974.
-5-
"Indeed, the purpose of [28 U.S.C.
2244(b)] was to eliminate the
§
need for the district courts to repeatedly consider challenges to
the same conviction unless an appellate panel first
those challenges had some merit."
773, 774 (5th Cir. 2000)
found that
United States v. Key, 205 F.3d
(citing In re Cain, 137 F.3d at 235).
The
petitioner has not obtained the requisite authorization in this
case.
Absent such authorization this court lacks jurisdiction over
the Petition.
Respondent's
Id. at 775.
Motion
for
Accordingly, the court will grant the
Summary Judgment
and will
dismiss
the
Petition as an unauthorized successive writ.
III.
Because
Certificate of Appealability
the habeas
corpus petition filed
in this
case
is
governed by the AEDPA, a certificate of appealability is required
before an appeal may proceed.
v.
Johnson,
118
F. 3d 1073,
See 28 U.S.C.
1076
(5th Cir.
actions filed under either 28 U.S.C.
certificate
of
§
appealability).
§
2253; see Hallmark
1997)
2254 or
"This
is
(noting
that
2255 require a
§
a
jurisdictional
prerequisite because the COA statute mandates that
\ [u] nless a
circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals[.]'"
Cockrell, 537 U.S. 322, 336 (2003)
(citing 28 U.S.C.
Miller-El v.
§
2253 (c) (1)).
A district court may deny a certificate of appealability, sua
sponte,
without
requiring
further
briefing
or
argument.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
-6-
See
The court
concludes
that
jurists of
reason would not debate whether the
procedural ruling in this case was correct or whether the Petition
qualifies as a successive application within the meaning of 28
U.S.C.
§
2244(b).
Accordingly, a certificate of appealability will
not issue in this case.
IV.
Conclusion
Based on the foregoing, the court ORDERS as follows:
1.
The Respondent's Motion for Summary
(Docket Entry No. 11) is GRANTED.
Judgment
2.
Steve Vic Parker a/k/a Jerry Wilson's Petition for
a Writ of Habeas Corpus By a Person in State
Custody (Docket Entry No.1) is DISMISSED without
prejudice for lack of jurisdiction.
3.
A certificate of appealability is DENIED.
The Clerk will provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 7th day of August, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?