Moore v. Stephens

Filing 4

REPORT AND RECOMMENDATION: that Petitioner's 1 application for writ of habeas corpus be dismissed without prejudice for want of jurisdiction. Signed by Judge Andrew W. Austin. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANTHONY DEXTER MOORE
V.
WILLIAM STEPHENS,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions Division

§
§
§
§
§
§
§

A-13-CA-1062-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1). Petitioner, proceeding pro se, has been granted leave to proceed in forma
pauperis. For the reasons set forth below, the undersigned finds that Petitioner’s application for writ
of habeas corpus should be dismissed.
I. STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence

of the 331st Judicial District Court of Travis County, Texas. After entering a guilty plea, Petitioner
was convicted of possession of a prohibited weapon and was sentenced to three years in prison on
July 31, 1991. Petitioner did not appeal his conviction or sentence.

He did, however, challenge his conviction in three state applications for habeas corpus relief.
The first application was denied without written order on the findings of the trial court without a
hearing on January 29, 1997. Ex parte Moore, No. 26,596-02. The second was dismissed as
successive on July 8, 1998. Ex parte Moore, No. 26,596-04. The third was dismissed as successive
on July 31, 2013. Ex parte Moore, No. 26,596-05.
B.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

He was not arraigned or indicted on the offense “possession of a prohibited weapon”
on July 31, 1991;

2.

Petitioner pleaded guilty to the felony offense of possession of a prohibited weapon
but thought he was pleading guilty to unlawfully carrying a weapon; and

3.

Petitioner’s sentence is illegal.
II. DISCUSSION AND ANALYSIS

A.

Jurisdiction
Federal habeas corpus relief is available only for persons who are “in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c)(3), 2254(a). A
habeas petitioner is not “in custody” under a conviction when the sentence imposed for that
conviction has fully expired at the time the petition is filed. Maleng v. Cook, 490 U.S. 488, 491
(1989). Under Supreme Court precedent, however, a habeas petitioner satisfies the “in custody”
requirement for purposes of challenging an expired conviction when that challenge may be read as
a challenge to the sentence which was enhanced by the expired conviction. See Lackawanna County
District Attorney v. Coss, 532 U.S. 394, 401 (2001). In Coss, the Court explained once a state
conviction is no longer open to direct or collateral attack in its own right, because the defendant did
2

not pursue those remedies while they were available or did so unsuccessfully, the conviction is
regarded as presumptively valid, and if it is later used to enhance a criminal sentence, it cannot be
challenged under Section 2254 on the ground that it was unconstitutionally obtained. Coss, 532 U.S.
at 403-04. There is an exception to the rule of conclusive validity for enhancement convictions that
were obtained in violation of the right to counsel as set forth in Gideon v. Wainwright, 372 U.S. 335,
(1963). See Coss, 532 U.S. at 404 (setting out the exception for enhancement convictions obtained
in violation of Gideon).
According to personnel for the Texas Department of Criminal Justice, Petitioner discharged
his sentence on July 28, 1994. Petitioner admits he was represented by counsel in his criminal case.
Therefore, he does not meet the exception outlined in Coss. Accordingly, the Court is without
jurisdiction to consider Petitioner’s direct challenge to his conviction for possession of a prohibited
weapon.
III. RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be dismissed
without prejudice for want of jurisdiction.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.

3

A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal of the Petitioner’s section 2254
petition on substantive or procedural grounds, nor find that the issues presented are adequate to
deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
V. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

4

A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 20th day of December, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

5