Kossie v. Davis
MEMORANDUM OPINION AND ORDER denying 2 APPLICATION to Proceed In Forma Pauperis, dismissing without prejudice 1 Petition for Writ of Habeas Corpus (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
LEXTER KENNON KOSSIE,
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
January 12, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3672
MEMORANDUM OPINION AND ORDER
Petitioner, Lexter Kennon Kossie (TDCJ #700661), has filed a
Petition for a Writ of Habeas Corpus By a Person in State Custody
(Docket Entry No. 1), challenging the administration
of his sentence.
In Forma Pauperis
Kossie has also filed an Application to Proceed
(Docket Entry No.
pleadings and the applicable
After considering the
action for the reasons explained below.
Kossie is currently incarcerated in the Texas Department of
Criminal Justice - Correctional Institutions Division ("TDCJ") as
the result of a 1994 aggravated robbery conviction in Harris County
cause number 679887. 1
The 185th District Court for Harris County,
Petition, Docket Entry No. 1, p. 2.
sentenced Kossie to life imprisonment in the case. 2
conviction was affirmed on direct appeal in an unpublished opinion.
See Kossie v. State, No. 14-94-01171-CR, 1997 WL 109996 (Tex. App.
-Houston [14th Dist.] March 13, 1997).
Since that time, Kossie
has filed no fewer than 21 petitions, applications, or motions to
challenge his conviction and sentence in state court. 3
also filed multiple federal habeas corpus petitions to challenge
his conviction and sentence. 4
On December 8,
Kossie executed the pending Petition,
eligibility for early release on parole based on the amount of
credit for good conduct
that he has
Kossie states that he has accumulated over thirty years
of good-time credit,
but that prison officials are refusing to
According to the statute in place at the time Kossie committed his
a prisoner serving a sentence for one of a
number of enumerated offenses,
including aggravated robbery,
Id. at 3-7 (listing Kossie's state court proceedings).
See Kossie v. Johnson, Civil No. H-99-0270 (S.D. Tex.
Feb. 14, 2001); Kossie v. Quarterman, Civil No. H-07-1415 (S.D.
Tex. May 2, 2007); Kossie v. Stephens, Civil No. H-15-1738 (S.D.
Tex. June 22, 2015).
Petition, Docket Entry No. 1, pp. 9-11, 14.
Id. at 9-10.
not eligible for release on parole until his actual calendar time
served, without consideration of good conduct time, equals one-half
of the maximum sentence or 30 calendar years, whichever is less."
entered into an
Kossie contends that the application of Tex.
Crim. Proc. art. 42.18
8(b) (3) and the refusal to consider his
reportedly protected by Article I, Section 10 of the United States
Court records confirm that Kossie has filed a previous federal
habeas corpus petition challenging his eligibility for parole.
Kossie v. Stephens, Civil No. H-15-1738 (S.D. Tex.).
Kossie also challenged the application of Tex.
8 (b) ( 3)
In that case
officials to count his good-time credit towards early release on
parole violated the
Amendment . 9
Protection Clause of
The court summarily denied relief after concluding
This statute was repealed in 1997 and re-codified at
508.145(d) of the Texas Government Code.
See Jones v. State,
No. 06-00-00216-CR, 2001 WL 345834, *2 & n.1 (Tex. App. -Texarkana
April 10, 2001, pet. ref'd) (citing Act of May 8, 1997, 75th Leg.,
ch. 165, § 12.22, 1997 Tex. Gen. Laws 443)
Memorandum and Law, Docket Entry No. 3, pp. 1-6.
Petition, Docket Entry No. 1, p. 6, and Memorandum and Law,
Docket Entry No. 2, pp. 1-7, in Civil No. H-15-1738.
that Kossie's claims were without merit.
determination of Kossie's parole eligibility under Tex. Code Crim.
Proc. art. 42.18
the court must consider whether this
action is barred as a successive application for habeas relief or
if other reasons militate in favor of dismissal.
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
successive" applications for habeas relief.
Before a second or
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).
To the extent
that the pending Petition qualifies as a successive writ, the court
has no jurisdiction to consider it absent prior authorization from
the Fifth Circuit.
petition in federal court applies whether the petitioner raises
claims to invalidate his underlying conviction or, as in this case,
claims related to his eligibility for parole."
2006 WL 740090,
(citations omitted) .
The Fifth Circuit has recognized that
prisoner's application is not second or successive simply because
it follows an earlier federal petition."
In re Cain, 137 F.3d 234,
petitioner's conviction or sentence that was or could have been
raised in an earlier petition" or
abuse of the writ."
"otherwise constitutes an
Id. ; see also United States v. Orozco-Ramirez,
211 F.3d 862, 867 (5th Cir. 2000).
Kossie's claim concerning the
application of Tex. Code Crim. Proc. art.
The pending Petition therefore meets the second-or-
Given the dubious nature of his contract
the Petition also arguably constitutes an abuse of the
The issue of whether a habeas corpus petition is successive
may be raised by the district court sua sponte.
Johnson, 104 F.3d 694, 697 (5th Cir. 1997).
See Rodriguez v.
Because the pending
Petition is successive, Kossie is required to seek authorization
See 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,
Kossie has not presented the requisite authorization.
authorization this court lacks jurisdiction over the Petition.
Accordingly, to the extent that Kossie seeks relief from
an adverse determination about his parole eligibility, the Petition
will be dismissed as an unauthorized successive writ.
Alternatively, even assuming that Kossie's Petition was not a
the court would still not allow him to
Because of Kossie's history of filing repetitive habeas
applications, the Fifth Circuit has imposed sanctions against him
in the amount of $100.00. 10
Under the terms of that sanction order,
"Kossie is BARRED from filing in [the Fifth Circuit] or any court
[the Fifth Circuit's]
jurisdiction any pleadings that
challenge his aggravated robbery conviction and sentence until the
sanction is paid in full, unless
first obtains leave of
the court in which he seeks to file his pleadings." 11
The clerk's office for the Fifth Circuit has confirmed that
sanction remains unpaid by Kossie.
is policy for
United States District Court for the Southern District of Texas to
district courts in Texas.
To the extent that Kossie seeks leave to
proceed as a sanctioned litigant, the court declines to grant such
See In re: Lexter Kennon Kossie, No. 14-20361 (5th Cir.
July 23, 2014), filed as Exhibit D, Docket Entry No. 98, pp. 7-8,
in Civil No. H-99-0270.
Accordingly, the Petition is subject to dismissal for this
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
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
controlling standard this
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.'"
10 2 9
10 3 9
( 2 0 0 3) .
Where denial of relief is based on
procedural grounds the petitioner must show not only 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
correct in its procedural ruling."
Slack, 120 S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
reasons set forth above, this court concludes that jurists of reason
would not debate whether any procedural ruling in this case was
Therefore, a certificate of 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 Lexter Kennon
Kossie (Docket Entry No. 1) is DISMISSED without
unauthorized successive application.
Alternatively, the Petition for a Writ of Habeas
Corpus By a Person in State Custody filed by Lexter
Kennon Kossie (Docket Entry No. 1) is DISMISSED
without prejudice pursuant to the sanctions that
have been imposed against him previously by the
Kossie's Application to Proceed In Forma Pauperis
(Docket Entry No. 2) is DENIED.
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 12th day of January, 2017.
UNITED STATES DISTRICT JUDGE
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