Phillips v. Stephens, No. 4:2015cv02861 - Document 4 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER. A certificate of appealability is DENIED. (Signed by Judge Sim Lake) Parties notified. (cfelchak, 4)
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Phillips v. Stephens Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TERRENCE RHODETRIC PHILLIPS, TDCJ #1678457, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Respondent. § § § § § § § § § § § § CIVIL ACTION NO. H-15-2861 MEMORANDUM OPINION AND ORDER The petitioner, Terrence Rhodetric Phillips (TDCJ #1678457), has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") under 28 U.S.C. § (Docket Entry No. 1), seeking relief 2254 from a state court judgment of conviction. After considering all of the pleadings and the applicable law, the court will dismiss this action for the reasons explained below. I. Background Phillips is currently incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ") as the result of a 1216069. 2010 conviction in Harris County cause number A jury in the 174th District Court for Harris County, Texas, convicted Phillips of possessing cocaine and sentenced him to 35 years' imprisonment. The conviction was affirmed on direct Dockets.Justia.com appeal in an unpublished opinion. 10-016043 -CR, 2012 WL 113 047 See Phillips v. State, No. 14- (Tex. App. - Hous. [14th Dist.) Jan. 12, 2012, pet. ref'd). In his pending federal habeas Petition Phillips contends that he is entitled to relief for the following reasons: ( 1) The prosecutor engaged in misconduct by bolstering her case during voir dire; (2) he was denied a fair trial by a "rational and impartial" jury; and (3) the prosecutor violated his Fifth Amendment rights during voir dire by commenting on a defendant's right not to testify . 1 Court records reflect that Phillips has filed a previous federal habeas corpus petition to challenge the same conviction. The court granted the respondent's motion to dismiss that petition with prejudice on March 30, 2015. No. H-14-2365 (S.D. Tex.). II. See Phillips v. Stephens, Civil Phillips did not pursu~ an appeal. Discussion This case is governed by the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C. § 2244(b), which imposes restrictions on the filing of "second or successive" applications for habeas relief. Before a second or successive application permitted by this section is 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 1 Petition, Docket Entry No. 1, pp. 6-7. -2- See application. Petition 28 qualifies U.S.C. as a 2244 (b) (3) (A) § successive writ, If the the court pending has no jurisdiction to consider it absent 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." Cir. 1998). In re Cain, 137 F.3d 234, 235 (5th A subsequent application is "second or successive" when it (1) "raises a claim challenging the petitioner's conviction or sentence petition" or that was or could have been raised in an earlier ( 2) "otherwise constitutes an abuse of the writ." Id.; see also United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). The claims raised by Phillips in this case are the ones same as the proceeding. 2 Thus, presented the pending in his earlier Petition meets habeas the corpus second-or- successive criteria. The issue of whether a habeas corpus petition is successive may be raised by the district court sua sponte. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). See Rodriguez v. Because the pending Petition is successive, Phillips is required to seek authorization from the Fifth Circuit application. See 28 u.s.c. of [28 U.S.C. § 2 before § this court 2244 (b) (3) (A). can consider his "Indeed, the purpose 2244(b)] was to eliminate the need for the district Petition, Docket Entry No. 1 in Civil No. H-14-2365, pp. 6-7. -3- courts to repeatedly consider challenges to the same conviction unless an appellate panel first found that those challenges had some merit." 2000) United States v. Key, Phillips has not presented the requisite authorization. Absent Petition. this Id. at 775. court lacks 235 (5th Cir. 1998)). authorization, 137 F.3d 234, 774 (5th Cir. such (citing In re Cain, 205 F.3d 773, jurisdiction over the Accordingly, the Petition must be dismissed as an unauthorized successive writ. III. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases now requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. 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. demonstrate § "that 2253 (c) (2), reasonable would constitutional find the assessment wrong." Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) McDaniel, the jurists court's Slack v. of which requires a petitioner to 120 S. controlling standard this Ct. 1595, requires a 1604 claims district debatable (2000)). petitioner to or (quoting Under the 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 encouragement to proceed further.'" Where denial of relief is based -4- were 'adequate to deserve Miller-El, 123 S. Ct. at 1039. 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, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. See Alexander v. For reasons set Johnson, 211 F.3d 895, forth above, 898 (5th Cir. this court concludes that 2000). jurists of reason would not debate whether any procedural ruling in this case was correct or whether the Petition in this case qualifies as a second or successive application. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Petition for a Writ of Habeas Corpus by a Person in State Custody filed by Terrence Rhodetric Phillips (Docket Entry No. 1) is DISMISSED without prejudice for lack of jurisdiction as an unauthorized successive application. 2. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 2nd ber, 2015. LAKE UNITED STATES DISTRICT JUDGE -5-
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