Sturgeon v. Davis
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
PAUL STURGEON, TDCJ #1948651,
LORIE DAVIS, Director,
Texas Department of Criminal
January 27, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0169
MEMORANDUM OPINION AND ORDER
has filed a
handwritten Petition for Federal Writ of Habeas Corpus [and] Brief
in Support ("Petition")
(Docket Entry No. 1) seeking relief under
2254 from a state court judgment of conviction.
considering the pleadings, Sturgeon's litigation history, and the
applicable law, the court will dismiss this action for the reasons
Harris County cause number 1280723. 1
On June 23, 2011, the 248th
District Court of Harris County, Texas, sentenced Sturgeon to serve
nine-year prison sentence. 2
Petition, Docket Entry No. 1, p. 1.
Id. at 1-2.
direct appeal in an unpublished opinion.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
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.
(Docket Entry Nos.
Sturgeon has filed a notice of
appeal, which remains pending before the Fifth Circuit. 5
This case is governed by the Anti-Terrorism and Effective
Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C.
Id. at 27.
Id. at 4, 11.
See Sturgeon v. Stephens, No. 16-20284.
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
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.
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
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)
Because Sturgeon's claims could have been raised
in his earlier habeas proceeding,
the pending Petition meets 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,
(5th Cir. 1997).
See Rodriguez v.
Because the pending
Petition is successive, Sturgeon is required to seek authorization
from the Fifth Circuit before this court can consider it.
2244 (b) (3) (A).
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.
205 F.3d 773,
In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)).
presented the requisite authorization.
Sturgeon has not
Absent such authorization
jurisdiction over the Petition.
the Petition will be dismissed as an unauthorized
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
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
controlling standard this
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
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
correct in its procedural ruling."
A district court may deny a
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).
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 Federal Writ of Habeas Corpus
filed by Paul Sturgeon (Docket Entry No. 1) is
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
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