Gonzalez v. Davis

Filing 8

MEMORANDUM AND ORDER granting Motion to proceed in forma pauperis, case is DISMISSED without prejudice. Certificate of appealability is DENIED. (Signed by Judge Melinda Harmon) Parties notified.(arrivera, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BOBBY SCOTT GONZALEZ,
TDCJ #1143533,
Petitioner,
VS.
LORIE DAVIS,

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May 27, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-1304

Respondent.
MEMORANDUM AND ORDER OF DISMISSAL
Petitioner Bobby Scott Gonzalez has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254 seeking relief from a state court conviction and sentence. He has also filed an
application to proceed in forma pauperis. For the reasons stated below, this action must be
dismissed.
I.

Successive Petition
Court records indicate that petitioner has filed two prior petitions for habeas corpus relief

regarding his 2002 felony murder conviction in Harris County cause number 924707. See
Gonzalez v. Thaler, Civ. A. No. H-10-1132 (S.D. Tex. Jun. 9, 2010) (dismissing the petition on
the merits as time-barred under 28 U.S.C. § 2244(d)); Gonzalez v. Thaler, Civ. A. No. H-113983 (S.D. Tex. filed Oct. 31, 2011) (dismissing petition as an unauthorized successive petition).
To the extent that petitioner raises the same claims in the present petition that he raised in his
previous petitions, this Court is required to dismiss those claims. 28 U.S.C. § 2244(b) (1). To
the extent that petitioner seeks relief on grounds not previously presented, he fails to allege or
show that he has sought or received authorization from the Fifth Circuit to proceed in this Court
with respect to any new claims he is raising. 28 U.S.C. § 2244(b) (3). Accordingly, this action
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is DISMISSED without prejudice to petitioner seeking authorization from the Court of Appeals
to proceed in this Court on any new claims.
II.

Certificate of Appealability
A certificate of appealability from a habeas corpus proceeding will not issue unless the

petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). This standard “includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Beazley v. Johnson, 242 F.3d
248, 263 (5th Cir. 2001).
On the other hand, when denial of relief is based on procedural grounds, the petitioner
must not only show that “jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Beazley, 242 F.3d at 263 (quoting
Slack, 529 U.S. at 484); see also Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000). 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). For the reasons
set forth in the Memorandum and Order on Dismissal, the Court has determined that petitioner
has not made a showing that reasonable jurists could disagree regarding the Court’s procedural
ruling. Therefore, a certificate of appealability from this decision will not issue.

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III.

Conclusion and Order
1.

Petitioner’s Motion to Proceed in forma pauperis is GRANTED.

2.

This action is DISMISSED without prejudice.

3.

A certificate of appealability is DENIED.

4.

All other pending motions, if any, are DENIED.

SIGNED at Houston, Texas, this 26th day of May, 2016.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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