Sturgeon v. Davis

Filing 4

MEMORANDUM OPINION AND ORDER 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)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PAUL STURGEON, TDCJ #1948651, § § § § § § § § § § § § Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. January 27, 2017 David J. Bradley, Clerk CIVIL ACTION NO. H-17-0169 MEMORANDUM OPINION AND ORDER The petitioner, Paul Sturgeon (TDCJ #1948651), has filed a handwritten Petition for Federal Writ of Habeas Corpus [and] Brief in Support ("Petition") 28 U.S.C. § (Docket Entry No. 1) seeking relief under 2254 from a state court judgment of conviction. After considering the pleadings, Sturgeon's litigation history, and the applicable law, the court will dismiss this action for the reasons explained below. I. Sturgeon challenges Background his conviction Harris County cause number 1280723. 1 for felony theft in On June 23, 2011, the 248th District Court of Harris County, Texas, sentenced Sturgeon to serve a nine-year prison sentence. 2 The conviction was 1 Petition, Docket Entry No. 1, p. 1. 2 Id. at 1-2. affirmed on direct appeal in an unpublished opinion. See Sturgeon v. State, No. 01-11-00575-CR, 2013 WL 816377 (Tex. App. -Houston [1st Dist.] March 5, 2013, pet. ref'd). On January 3, 2017, Sturgeon executed the pending Petition, arguing that he is entitled to federal habeas corpus relief from his conviction in cause number 1280723. 3 In particular, Sturgeon contends that he is "actually innocent" because (1) he was denied effective assistance of counsel and (2) the trial court was biased against him. 4 Court records confirm that Sturgeon has filed a previous federal habeas corpus petition challenging the same conviction in cause number 1280723. 2 6 2 8 ( S . D . Tex . ) . See Sturgeon v. Stephens, Civil No. H-15- The district court denied Sturgeon's petition with prejudice after considering the merits of his claim that he was actually innocent because his indictment was defective. id. (Docket Entry Nos. 26, 28). See Sturgeon has filed a notice of appeal, which remains pending before the Fifth Circuit. 5 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. 3 Id. at 27. 4 Id. at 4, 11. 5 See Sturgeon v. Stephens, No. 16-20284. -2- § 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 the application. See 28 U.S.C. § 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. 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). 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 or sentence petition" or that was ( 2) 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, (5th Cir. 2000) 867 Because Sturgeon's claims could have been raised in his earlier habeas proceeding, the pending Petition meets the second-or-successive criteria. 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, Sturgeon is required to seek authorization -3- from the Fifth Circuit before this court can consider it. See 28 u.s.c. U.S.C. § 2244 (b) (3) (A). § 2244 (b)] "Indeed, the purpose of [28 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 some merit." United States v. Key, 205 F.3d 773, 774 (5th Cir. In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). presented the requisite authorization. this court Accordingly, lacks 2000) (citing Sturgeon has not Absent such authorization Id. jurisdiction over the Petition. at 775. the Petition will be dismissed as an unauthorized successive writ. III. 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. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a right," 28 U.S.C. demonstrate court's "'that assessment § 2253(c) (2), reasonable of the constitutional which requires a petitioner to jurists would constitutional find claims the district debatable wrong."' Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) Slack v. McDaniel, 120 S. controlling standard this Ct. 1595, requires -4- a 1604 (2000)). petitioner to or (quoting Under the show "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 Miller-El v. encouragement to proceed further.'" s. Ct. 10 2 9 I 10 3 9 'adequate to deserve Cockrell, 123 Where denial of relief is based on ( 2 0 0 3) 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 they "would find it debatable whether correct in its procedural ruling." A district court may deny a the district court Slack, 120 S. Ct. at 1604. certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). reasons set forth above, this was court concludes that See For the jurists of 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. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Petition for Federal Writ of Habeas Corpus filed by Paul Sturgeon (Docket Entry No. 1) is DISMISSED without prejudice for lack of jurisdiction as an unauthorized successive application. -5- 2. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the petitioner. SIGNED at Houston, Texas, on this 27th day of January, 2017. UNITED STATES DISTRICT JUDGE -6-

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