McGrew-Bey v Stephens, No. 4:2014cv00352 - Document 8 (N.D. Tex. 2014)
Court Description: Memorandum Opinion and Order...petition of petitioner for a writ of habeas corpus pursuant to 28 USC 2254 is dismissed as successive. Certificate of appealability denied, as petitioner has not demonstrated that the Fifth Circuit has authorized him to file a successive petition nor has he made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 5/20/2014) (wrb)
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McGrew-Bey v Stephens Doc. 8 j;- U. lI.f!utj tu. S.)SIkt ' j j y '. . ' t - 1 NO RTHERN DI STRI OFTEXAS CT IN THE UNITED STATES DISTRIC COUR FOR THE NORTHERN DISTRICT O TEXA FORT WORTH Dl oN vzsz K EV IN D . MCGREW-BEY, FI LED . . 1 f 202 l . 91 CLERK UX DBTW CTCOURT lk-.--.. lj -..-. lp - .. ' --. . . De uy pt Petitioner, '-' ! j t No . 4 :l4-CV -352 -A V. WILLIAM STEPHENS , Director el Texas Department of Criminal Justice, Correctional Institutions Div ision , Respondent . M EM OD AH DUM OPIN ION ORD ER In this action , petitioner filed a request for declaratory judgment seeking relief from his 1993 state court conviction for aggravated robbery with a deadly weapon in Tarrant County , Texas, l'petitioner 's Request for Declaratory Judgement' is A ' construed as a petition for writ of habeas corpus by a person in state custody under 28 U .S .C . 5 2254, ïnfra 1-2 . In a habeas proceeding brought by a prisoner, generally there is only one proper respondent, the immediate physical custodian of the prisoner. Rumsfeld v. Padilla, 542 U. . 426, 434-35 ( S 2004). Petitioner is currently confined in the Correctional Institutions Division of the Texas Department of Criminal Justice ( TDCJ) in Beaumont, Texas . William Stephens is the Director of TDCJ ; thus, he is the proper respondent . The Court orders the clerk of Court to add uWilliam Stephens, Director of the Texas Department of Criminal Justice , Correctional Institutions Division' as a party ' respondent and to docket and change the title of the action to 'Kev in D . A McGrew -Bey , Petitioner v . William Stephens , Director , Texas Department of Crim inal Justice, Correctional Institutions Division, Respondent .' ' Dockets.Justia.com Case No . 0467776A . Pet w ECF No . TDCJ 'S Offender Information Detail, avaïiabie at http: //www. tdcj.state.tx. us/offender information . A fter review and consideration of petitioner's request, the undersigned finds that it should be construed as a petition for a writ of habeas corpus under 28 U .S .C . 5 2254 filed by petitioner, Kevin D . McGrew -Bey , a state prisoner incarcerated in TDCJ , against William Stephens , Director of TDCJ , respondent . z No service has issued upon respondent . Having exam ined the p leadings, court records , and relief sought by petitioner , the I court has concluded that the petition should be summarily dismissed as successive . z Where a state prisoner challenges the validity of a state court conviction on which he is confined , the claim is cognizable only as an action for a petition for writ of habeas corpus. See Preïser v. Rodriguez, 4l1 U . 475, 486-87 ( S. 1973) ( the essence of habeas corpus is an attack by a person in custody upon the legality of that custody and the traditional function of the writ is to secure release from illegal custody); Waldon v. State of Iowa, 323 F.2d 852, 853 ( 8th Cir. 1963) ( providing a 'state ' prisoner is not entitled to seek a declaratory determ ination from the federal courts under 28 U .S .C . . 5 2201 as to the validity of A the judgment on which he is confined' in order to circumvent the ' exhaustion requirement of 5 2254); Sumpter v. Johnson, No. 4 : 01CV-157-E, 2001 WL 406229, at *1 ( . . N D TeX. Apr . 18, 2001) (finding declaratory judgment act cannot be used as a substitute for habeas corpus). Thus, petitioner's request for declaratory judgment must be construed as a petition for writ of habeas corpus under 28 U .S .C . 5 2254 . 2 FACTUAL AND PROCEDUWAL H ISTORY Petitioner has filed two prior federal petitions under 5 2254 challenging the same conv iction in this court . McGrew v . Thaler, Civil Action No . 4:l0-CV -899-Y, 2010 WL 5452714 ( . . N D TeX. Dec. 28, 2010) ( petition dismissed as successive as to grounds one and two and dismissed as to ground three because claim not cognizable on habeas review); McGrew Johnson , Civil A ction No . 4:00-CV-0103-Y ( petition dismissed as barred by statute of limitations) Petitioner brings this third petition based on alleged newly discovered evidence in the form of two written articles involving the trial judge's and his appointed counsel's actions during the revocation proceedings in the underlying state criminal case-specifically, the fact that the trial judge personally negotiated 'plea deals' with defense counsel . Pet w ' ' Ex . A , ECF No . Pet 'r's A ffidavit in Support, Ex . B , ECF No . According to petitioner, he was not aware of this misconduct or the significance of the misconduct until October 2013 when his wife found the articles on the Internet . Pet . 2, ECF No . Pet 'r's Affidavit 2, ECF No . 2 . 3 The court takes judicial notice of the pleadings and court records filed in petitioner 's two prior federal habeas actions and notes that petitioner indicated his name to be *Kevin Deshawn * McGrew' in the prior petitions . ' II. SUCCESSIVE PETITION Rule 4 of the Rules Governing Section 2254 Cases in the Un ited States D istrict Courts and 28 U .S .C . 5 2243 b0th authorize a habeas corpus petition to be summarily dismissed .d The Court of Appeals for the Fifth Circuit recognizes a district court's authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state . Kiser JoAnson, l63 F.3d 326, 328 ( 5th Cir. 1999). From the face of the instant petition and court records, it is apparent 4section 2243 corpus , provides : governing applications for writ of habeas A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted , unless ï: appears from the app lica tion that tAe app lican t or p erson detained is no t en titled tAereto . 28 U . S.C. 5 2243 ( emphasis added). Rule 4 of the Rules Governing Section 2254 Cases provides : The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from tAe p etition and any attached exhibits tAat tAe petitioner is no t entïtied to relief n tAe district court, & judge Must dismiss the petition and direct Ae the clerk to notify tAe p etitioner . Rules Governing Section 2254 Cases, Rule 4 ( emphasis added). 4 that this is a successive petition. See 28 U.S. 5 2244 ( C. 5) Title 28 U . . S C. 2244 4 requires dismissal of a second or b) successive petition filed by a state prisoner under J 2254 unless specified conditions are met. 28 U . C. 5 2244 ( ) ( -( ) . S. b 1) 2 Further , before a petitioner may file a successive 5 2254 petition , he must obtain authorization from the appropriate court of appeals. 28 U . C . 5 2244 ( ( ( S. b) 3) A). Claims based on newly discovered evidence or a factual predicate not previously discoverab le are successive . Garca v . Quar terman . 573 F .3d 214, 221 (5th Cir . 2009). A district court has no jurisdiction to decide a second or successive claim on the merits w ithout authority from the appropriate court of appeals. 28 U . S.C. 5 2244 ( 3). b)( Petitioner has not demonstrated that he has obtained leave to file this petition from the Fifth Circuit Court of Appeals . Thus, this court is without jurisdiction to consider the petition . zn re Epps, 127 F. 364, 365 ( s 3d 5th Cir . 1997); United States v. Orozco-Ramrez, 2ll F. 862, 867 ( 3d 5th Cir . 2000). s Because the court lacks jurisdiction to consider the petition , the court makes no ruling on petitioner's 'Application ' to Proceed In Forma Pauperis' and nPetitioner 's Motion for ' Discovery and Evidentiary Hearing Pursuant to Federal Rules of Civil Procedure Rule 26 .' Mots ., ECF Nos . 3 & 4 . ' For the reasons discussed herein , The court ORDERS that the petition of petitioner for a writ of habeas corpus pursuant to 28 U .S .C . 5 2254 be, and is hereby , dism issed as successive . Pursuant to Rule 22( of the Federal Rules of Appellate b) Procedure, Rule 11( of the Rules Governing Section 2254 Cases a) the United States District Court, and 28 U. . 5 2253( S C. c), for the reasons discussed herein , the court further ORDERS that a certificate of appealability be , and is hereby , denied , as petitioner has not demonstrated that the Fifth Circuit has authorized h im to file a successive petition nor has he made a substantial showing of the denial of a constitutional right . soE My J j ,2z . zuo a è ) o4 . z- A Z ,Z z A, . . zz M BR YDE UN ITED STATES D RICT JUDGE
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