Lewis v. Stephens
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, 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)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
JAMES EDWARD LEWIS,
WILLIAM STEPHENS, Director,
Texas Department of Criminal
December 02, 2015
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-3414
MEMORANDUM OPINION AND ORDER
The petitioner, James Edward Lewis (TDCJ #1040551), has filed
a Petition for a Writ of Habeas Corpus By a Person in State Custody
(Docket Entry No.
seeking relief under 28 U.S.C.
2254 from a state court judgment of conviction.
filed an Application to Proceed In Forma Pauperis
Lewis has also
After considering the pleadings and the applicable law,
the court will dismiss this action for the reasons explained below.
Lewis is currently incarcerated in the Texas Department of
Criminal Justice - Correctional Institutions Division ("TDCJ") as
The petitioner lists Warden Jennifer Brown as the respondent.
Because the petitioner is in custody of the Texas Department of
Criminal Justice - Correctional Institutions Division, the court
substitutes Director William Stephens as the proper respondent
pursuant to Rule 2(a)
of the Rules Governing Section 2254
Proceedings in the United States Courts.
the result of a
2001 conviction in Harris County cause number
A jury in the 232nd District Court for Harris County,
Texas, convicted Lewis of unauthorized use of a motor vehicle and
he was sentenced to 15 years'
The conviction was
affirmed on direct appeal in an unpublished opinion.
14-01-00735-CR (Tex. App.- Hous.
See Lewis v.
In his pending Petition Lewis contends that he is entitled to
a writ of habeas corpus, a writ of mandamus, or outright release on
unspecified reasons and that he has been denied an evidentiary
hearing in state court. 2
conviction that was
To the extent that Lewis challenges a
entered against him in 2001,
appears barred by the governing one-year statute of limitations.
2244 (d) (1) (A).
conviction and 15 -year
sentence on federal habeas corpus review.
Court records reflect that Lewis has filed a previous federal
unauthorized use of a motor vehicle in cause number 867453.
that case Lewis argued that his 15-year sentence was unconstitutional for several reasons. 3
The court granted the respondent's
Petition, Docket Entry No. 1, pp. 6-7.
Petition for a Writ of Habeas Corpus By a Person in State
Custody, Docket Entry No. 1 in Civil No. H-05-0522, pp. 7-8.
motion to dismiss the petition with prejudice on March 1, 2005.
Lewis v. Dretke, Civil No. H-05-0522 (S.D. Tex.).
The Fifth Circuit
denied Lewis a certificate of appealability from that decision.
Lewis v. Dretke, No. 05-20272 (5th Cir. Dec. 14, 2005).
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 imposes restrictions on the filing of "second or
Before a second or
successive" applications for habeas relief.
successive application permitted by this section may be filed in
the district court the applicant must move in the appropriate court
of appeals for an order authorizing the district court to consider
2244 (b) (3) (A).
jurisdiction to consider it absent prior authorization from the
application is not second or successive simply because it follows
an earlier federal petition."
In re Cain, 137 F.3d 234, 235 (5th
A subsequent application is "second or successive"
when it (1) "raises a claim challenging the petitioner's conviction
was or could have been raised in an earlier
"otherwise constitutes an abuse of the writ."
Id.; see also United States v. Orozco-Ramirez,
211 F.3d 862,
The claims raised by Lewis in this case are
The issue of whether a habeas corpus petition is successive
may be raised by the district court sua sponte.
Johnson, 104 F.3d 694,
Petition is successive,
(5th Cir. 1997).
See Rodriguez v.
Because the pending
Lewis is required to seek authorization
See 28 U.S.C.
of [28 U.S.C.
2244 (b) (3) (A).
"Indeed, the purpose
2244(b)] was to eliminate the need for the district
courts to repeatedly consider challenges to the same conviction
unless an appellate panel first found that those challenges had
United States v. Key,
(citing In re Cain,
205 F.3d 773,
137 F. 3d 234,
Lewis has not presented the requisite authorization.
authorization this court lacks jurisdiction over the Petition.
Accordingly, to the extent that Lewis seeks relief from
his conviction in Harris County cause number 867453 the Petition
must be dismissed as an unauthorized successive writ. 5
Compare Petition, Docket Entry No. 1, pp. 6-7, with Petition,
Docket Entry No. 1 in Civil No. H-05-0522, pp. 7-8.
Lewis briefly mentions a "parole hearing" that occurred on
October 2, 2015 (Docket Entry No. 1, p. 9). He does not indicate
whether his parole was revoked or whether release on parole was
denied and he does not otherwise raise any substantive grounds for
(continued ... )
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases now requires
a district court to issue or deny a certificate of appealability
when entering a final order that is adverse to the petitioner.
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a
2253 (c) (2),
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
which requires a petitioner to
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
encouragement to proceed further.'"
Miller-El, 123 S. Ct. at 1039.
petitioner must show not only that "jurists of reason would find it
debatable whether the petition states a valid claim of the denial
but also that
"would find it
debatable whether the district court was correct in its procedural
Slack, 120 S. Ct. at 1604.
( • • • continued)
relief from this proceeding. Because Lewis does not purport to
challenge a specific adverse decision concerning his parole, the
court does not address this proceeding further.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
reason would not debate whether any procedural ruling in this case
was correct or whether the Petition in this case qualifies as a
second or successive application.
appealability will not issue.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by James Edward Lewis
(Docket Entry No. 1) is DISMISSED without prejudice
for lack of jurisdiction as an unauthorized
Lewis's Application to Proceed In Forma Pauperis
(Docket Entry No. 2) is GRANTED.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 1st day of December, 2015.
UNITED STATES DISTRICT JUDGE
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