Winfrey v. Stephens, No. 4:2014cv03449 - Document 6 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Writ of Habeas Corpus, granting 3 APPLICATION to Proceed In Forma Pauperis. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Winfrey v. Stephens Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CLIFFORD NEAL WINFREY, JR., TDCJ NO. 1365252, § § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-14-3449 MEMORANDUM OPINION AND ORDER Clifford Neal Winfrey, Jr., has filed a federal Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No.1) challenging a state court felony conviction. The Petition will be dismissed as successive. Winfrey's habeas Petition challenges a felony conviction and 40-year sentence for murder. State v. Weems, No. 10298859 (174th Dist. Ct., Harris County, Tex.). that he was denied (Docket Entry No.1, effective p. 6) His sole ground for relief is assistance counsel at trial. Winfrey asserts that he entered a guilty plea to the trial court. Id. at 3. him guilty and pronounced his sentence, appeal of the conviction. of After the court found Winfrey filed a direct The Court of Appeals for the First District of Texas affirmed the trial court's judgment. Winfrey v. Dockets.Justia.com State, No. 01-06-00473, 2007 WL 1844425 (Tex. App. Dist.] 2005, pet. Winfrey then ref'd). Discretionary Review (PDR) , which the filed Texas -- Hous. a [1st Petition for Court of Criminal No Petition for a Writ of Appeals refused on January 16, 2008. Certiorari was filed. Winfrey filed a state application for a writ of habeas corpus, which the Texas Court of Criminal Appeals dismissed because his direct appeal was still pending. (Tex. Crim. App. June 4, habeas application, 2008). Ex parte Winfrey, No. 69,907-01 He then filed a second state which the Court of Criminal Appeals denied without a written order. Crim. App. April 9, Ex parte Winfrey, 2014) No. 69,907-04 (Tex. See Texas Court of Criminal Appeals Website, http://www.cca.courts.state.tx.us/. On January 17, 2013, during the pendency of the second state habeas application, Winfrey filed a federal petition for a writ of habeas corpus in which effective assistance of No. H-13-0253 he also contends counsel at (S.D. Tex.). trial. that he was Winfrey v. denied Thaler, The federal district court issued an order staying the proceedings pending the outcome of the state habeas action. the court. The federal habeas petition is still pending before Id. This action is subject to the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which bars as successive federal habeas challenges to a state court conviction. -2 - 28 U.S.C. § 2244(b). The primary purpose of this requirement is to prevent petitioners, such as Winfrey, sentences. 2000), from repeatedly at tacking the same convictions and See United States v. Key, 205 F.3d 773, 774 (5th Cir. citing In re Cain, 137 F. 3d 234, 235 (5th Cir. 1998). Because of the prior federal petition, Winfrey must first obtain permission from the United States Court of Appeals for the Fifth Circuit § before 2244 (b) (3); 2009). filing another habeas Propes v. Quarterman, petition. 573 F.3d 225, 28 229 U.S.C. (5th Cir. There is no indication that the Fifth Circuit has granted permission for Winfrey to file the current Petition. authorization, jurisdiction. 1999) . this action Hooker v. The dismissal must Sivley, be dismissed 187 F.3d 680, Without such for 681-82 lack of (5th Cir. is without prejudice to Winfrey seeking relief in Cause No. H-13-0253. If Winfrey seeks to appeal the dismissal of his Petition, he must first obtain a Certificate of Appealability U.S.C. 2011). § 2253; Cardenas v. Thaler, 651 F.3d 442, (COA). 443 See 28 (5th Cir. In order to obtain a COA, Winfrey must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." 120 s. Ct. 1595, 1604 (2000). Slack v. McDaniel, A COA shall be denied because this action is clearly barred, and Winfrey has not made a substantial showing of the denial of a constitutional right. Quarterman, 454 F.3d 456 (5th Cir. 2006). -3- See Resendiz v. Conclusion and Order The court ORDERS the following: 1. This Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No.1) is DISMISSED WITHOUT PREJUDICE. 2. The petitioner's Application to Proceed In Forma Pauperis (Docket Entry No.3) is GRANTED. 3. A Certificate of Appealability is DENIED. 4. The Clerk will provide a copy of this Memorandum Opinion and Order to the petitioner; and a copy of the Petition and this Memorandum Opinion and Order to the Attorney General of the State of Texas. SIGNED at Houston, Texas, on this 4th day of December, 2014. UNITED STATES DISTRICT JUDGE -4-
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