Johnson v. Davis

Filing 21

MEMORANDUM AND ORDER entered. The respondent's motion to dismiss 17 is granted. This case is dismissed without prejudice for lack of jurisdiction as an unauthorized successive application. A certificate of appealability is denied. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDDIE DON JOHNSON,
(TDCJ #364033)

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Petitioner,
v.
LORIE DAVIS,
Respondent.

April 06, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1893

MEMORANDUM AND ORDER
The petitioner, Eddie Don Johnson, seeks a writ of habeas corpus to challenge a state court
judgment under 28 U.S.C. § 2254. Johnson is representing himself and has been granted leave to
proceed without prepaying the filing fee. The respondent has filed a motion to dismiss for lack of
jurisdiction as a successive petition, and Johnson has responded. (Docket Entry Nos. 17, 20). After
considering all of the pleadings, and the applicable law, the court denies the motion and dismisses
this case because Johnson does not have the necessary permission to file it, meaning that this court
has no jurisdiction. The reasons are explained below.

I.

Background
Johnson is incarcerated in the Texas Department of Criminal Justice - Correctional

Institutions Division-as the result of his 1983 convictions in Harris County Cause Numbers 375536
and 375537. Johnson was convicted of first-degree murder with a deadly weapon in each cause and
sentenced to concurrent 60-year terms.

The Fourteenth Court of Appeals of Texas affirmed

Johnson's convictions on direct appeal. Johnson v. State, Nos. A14-83----652-CR, B14-83-653-CR

(Tex. App.-Houston [14th Dist.] 1984). Johnson has filed ten applications for a state writ of
habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure, all of which were
denied or dismissed by the Texas Court of Criminal Appeals. See Docket Entry No. 18, Ex parte
Johnson, Application Nos. WR-31,972-01 thru WR-31,972-10.

Johnson does not challenge his convictions here. Instead, he challenges the conditions
imposed upon his supervised release from prison and the subsequent revocation of his parole in
2005. In a federal habeas corpus petition dated June 15, 2017, Johnson contends that he is entitled
to relief on the following grounds: (1) improper methods were used to obtain evidence, which was
used against him during his parole revocation proceeding; (2) TDCJ failed to advise him that he
would be required to wear an electronic monitoring device during his supervised release; (3) he is
not required to serve the full 60-year sentence because he is entitled to good-time credit; (4) his
warrantless arrest while on supervised release violated his Fourth Amendment rights; (5) the trial
court abused its discretion in denying his request for a temporary injunction; (6) the Parole Board's
informal "serve all" policy has increased the length of his sentence, resulting in an ex post facto
violation; and (7) his right to due process of law was violated because the statute proscribing
offensively coarse language is overbroad and vague. See Docket Entry No. 1, at 6-11; Docket Entry
No.4.
Court records reflect that Johnson has filed a previous federal habeas corpus petition to
challenge the same 2005 parole revocation. See Johnson v. Thaler, Civil No. 4:08-cv-3375 (S.D.
Tex. 2009) (dismissed with prejudice). He has not sought permission to file this petition. 1

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The court notes that Johnson's petition includes a copy of a letter from the Fifth Circuit Court of
Appeals, dated May 8, 2017, which responds to an inquiry about filing a second or successive§ 2254
petition in the district court. (Docket Entry No. 1, at 14-15). The letter does not demonstrate that

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II.

Discussion
The pending petition Johnson filed in this case is an unauthorized successive application

under 28 U.S.C. § 2244(b). Before a second or successive application can 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). If the pending petition is a
successive writ, this court has no jurisdiction to consider it without 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." In re Cain, 137 F.3d 234, 235 (5th Cir. 1998).
A later application is successive when it: (1) raises a claim challenging the conviction or sentence
that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the
writ."' ld.; see also United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). Johnson
fails to demonstrate why he could not have raised the claims he raises here in his original federal
habeas petition challenging the same 2005 parole revocation. 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
on its own motion. See Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). Because the
pending petition is successive, Johnson must seek authorization from the Fifth Circuit before this
court can consider his application. See 28 U.S.C. § 2244(b)(3)(A). "Indeed, the purpose of [28
U.S.C. § 2244(b )] was to eliminate the need for the district courts to repeatedly consider challenges

Johnson filed an original application in the Fifth Circuit or that he received permission to file a
successive petition.

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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. 2000) (citing In re Cain, 137 F.3d 234, 235 (5th
Cir. 1998)). Absent this authorization from the Fifth Circuit, this court lacks jurisdiction over the
petition. !d. at 775. It must be dismissed as an unauthorized successive writ.

III.

Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny

a certificate of appealability when entering a final order that is adverse to the petitioner. See 28
U.S. C. § 2253. A certificate of appealability will not issue unless the petitioner makes "a substantial
showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), which requires a petitioner
to demonstrate "that reasonable jurists would find the district court's assessment ofthe constitutional
claims debatable or wrong." Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). This requires the petitioner to 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 'adequate to deserve encouragement to proceed
further."' Miller-El v. Cockrell, 537 U.S. 322,336 (2003). When 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 they
"would find it debatable whether the district court was correct in its procedural ruling." Slack, 529
U.S. at 484.
This court concludes that jurists of reason would not debate whether any procedural ruling
in this case was correct or whether Johnson stated a valid claim for relief. Therefore, a certificate
of appealability will not issue.

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IV.

Conclusion and Order

The respondent's motion to dismiss, (Docket Entry No. 17), is granted. This case is
dismissed without prejudice for lack of jurisdiction as an unauthorized successive application. A
certificate of appealability is denied.
SIGNED on AprilS, 2018, at Houston, Texas.

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Lee H. Rosenthal
Chief United States District Judge

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