George v. Davis
MEMORANDUM AND ORDER OF DISMISSAL. This action is DISMISSED without prejudice as a successive petition. A certificate of appealability is DENIED. All other pending motions, if any, are DENIED. The Clerk will enter this Order, providing a correct copy to all parties of record.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
March 06, 2018
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GBOWEH DICKSON GEORGE,
LORIE L. DAVIS,
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-421
MEMORANDUM AND ORDER OF DISMISSAL
Petitioner Gboweh Dickson George, a state prisoner, has filed this federal petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, again seeking relief from a state court
conviction and sentence. (Docket Entry No. 1).
After a review of court records, the Court
concludes that the petition must be dismissed as successive.
Court records indicate that petitioner has filed at least three prior petitions for habeas
corpus relief of his 2012 conviction for the murder of an eleven-year old boy in cause number
1302726 in the 176th Judicial District Court of Harris County, Texas. See George v. Stephens,
Civ. A. No. H-15-3137 (S.D. Tex. 2016) (dismissing the petition on the merits); George v.
Davis, Civ. A. No. H-16-2004 (S.D. Tex. 2016) (dismissing as a successive petition); George v.
Davis, Civ. A. No. H-16-3666 (S.D. Tex. 2017) (dismissing as a successive petition). Although
Petitioner does not identify any details regarding his conviction or the litigation history of his
criminal case in his instant petition, public records indicate that he is still incarcerated on the
2012 conviction for murder in Harris County cause number 1302726.1 In the present case,
Petitioner again raises a claim regarding a competency hearing. See Docket Entry No. 1 at 6;
George, Civ. A. No. H-15-3137; George, Civ. A. No. H-16-2004; George, Civ. A. No. H-163666. Therefore, this Court is required to dismiss that claim. See 28 U.S.C. §2244(b)(1).
The issue of whether a habeas corpus petition is successive may be raised by the district
court sua sponte. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). This Court lacks
jurisdiction to consider Petitioner’s petition as it is a successive petition requiring Fifth Circuit
authorization before a district court may consider it. 28 U.S.C. § 2244(b)(3).
There is no
indication on the record that the United States Court of Appeals for the Fifth Circuit has
authorized this court to consider petitioner’s successive petition. Therefore, this Court lacks
jurisdiction to consider petitioner’s habeas claims. Accordingly, this action is DISMISSED
without prejudice to petitioner seeking authorization from the Court of Appeals to proceed in this
Court on any new claims.
CERTIFICATE OF APPEALABILITY
A certificate of appealability from a habeas corpus proceeding will not issue unless the
petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). This standard “includes showing 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Beazley v. Johnson, 242 F.3d
248, 263 (5th Cir. 2001). On the other hand, when denial of relief is based on procedural
OffenderSearch/offenderDetail.action?sid=06401698 (last visited Feb. 13, 2018).
grounds, the petitioner must not only show 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.” Beazley, 242
F.3d at 263 (quoting Slack, 529 U.S. at 484); see also Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir.2000). A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
For the reasons set forth in the Memorandum and Order on Dismissal, the Court has determined
that petitioner has not made a showing that reasonable jurists could disagree regarding the
Court’s procedural ruling. Therefore, a certificate of appealability from this decision will not
CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
This action is DISMISSED without prejudice as a successive petition.
A certificate of appealability is DENIED.
All other pending motions, if any, are DENIED.
The Clerk will enter this Order, providing a correct copy to all parties of record.
SIGNED at Houston, Texas, this 5th day of March, 2018.
UNITED STATES DISTRICT JUDGE
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