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)

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direct appeal in an unpublished opinion.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-