Robertson v. Thaler, Director TDCJ-CID, No. 4:2011cv00628 - Document 4 (N.D. Tex. 2011)

Court Description: MEMORANDUM OPINION and ORDER... the petition of petitioner for a writ of habeas corpus pursuant to 28 USC 2254 is hereby dismissed... for the reasons discussed herein, the court further ORDERS that a certificate of appealability is hereby denied, as petitioner has not made a substantial showing of the denial of a constitutional right. See Order for further specifics. (Ordered by Judge John McBryde on 9/9/2011) (krg)

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us. DISTRICT COURT NORTHERN DISTRICT OF TEXAS FILED 28H IN THE UNITED STATES DISTRICT CURT SEP -9 FOR THE NORTHERN DISTRICT OF TE S FORT WORTH DIVISION CLERK, U.S. DISTRICT COURT by _ _-...---:~_ __ ALBERT LEE ROBERTSON, Deputy § § Petitioner, § § v. § No. 4:11-CV-628-A § RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, § § § § § Respondent. § MEMORANDUM OPINION and ORDER This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Albert Lee Robertson, a state prisoner currently incarcerated in Gatesville, Texas, against Rick Thaler, Director of the Texas Department of Criminal Justice, Correctional Institutions Division, respondent. 1 After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be summarily dismissed as successive. No service has issued upon respondent. lpetitioner filed a form § 2255 petition, which he claims was sent to him instead of a form § 2254 petition as requested. The petition is construed as a petition for writ of habeas corpus by a person in state custody under 28 U.S.C. § 2254. I ¢ FACTUAL AND PROCEDURAL HISTORY Petitioner is serving a life and a 20-year sentence concurrently on his 1996 convictions for aggravated sexual assault of a child under 14 and indecency with a child, respectively, in Tarrant County, Texas. Petitioner filed a prior federal habeas petition challenging the same convictions, which was dismissed as barred by limitations. Johnson, No. 4:98-CV-1160-Y. See Robertson v. The court takes judicial notice of the pleadings and state court records filed in petitioner's prior federal petition. II. SUCCESSIVE PETITION Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. 2 The Court of Appeals 2Section 2243, governing applications for writ of habeas corpus, provides: 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 it appears from the application that the applicant or person is not entitled thereto. 28 U.S.C. § 2243 (emphasis added) . Rule 4 of the Rules Governing Section 2254 Cases provides: The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the 2 for the Fifth Circuit recognized the district courts' authority under Rule 4 to examine and dismiss frivolous habeas petitions Kiser v. prior to any answer or other pleading by the state. From the face of the Johnson, 163 F. 3d 326, 328 (5 th Cir. 1999). instant petition and court records of which this court can take judicial notice, it is apparent that this is a successive petition. See 28 U.S.C. § 2244 (b) (1) - (3) . Title 28 U.S.C. § 2244(b) requires dismissal of a second or successive petition filed by a state prisoner under 28 U.S.C. specified conditions are met. § § 2254 unless 2244 (b) (1) - (2) . A petition is successive when it raises a claim or claims challenging the petitioner's conviction or sentence that were or could have been raised in an earlier petition or otherwise constitutes an abuse of the writ. In re Cain, 137 F.3d 234, 235 (5 th Cir. 1998). Cir. 2003) i that earlier an See Crone v. Cockrell, 324 F.3d 833, 837 (5 petition was dismissed with The fact prejudice The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Rules Governing Section 2254 Cases, Rule 4 (emphasis added) . 3 th on limitations grounds does not remove the subsequent petition from the second-successive requirements of § See Hooker v. 2244(b). Sivley, 187 F.3d 680, 682 (5 th Cir. 1999) i Anders v. Cockrell, No. 03:02-CV-2513-N, 2003 WL 102615, at *2 (N.D. Tex. Jan. 8, 2003) (not designated for publication) . Petitioner raises eleven grounds in the instant petition. (Pet. at 7-8E) Because petitioner raised, or could have raised, the his claims in prior successive on its face. § federal petition, this petition is Before a petitioner may file a successive 2254 petition, he must obtain authorization from the appropriate court of appeals. 28 U.S.C. § 2244 (b) (3) (A). Petitioner has neither alleged nor 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. In re Epps, 127 F.3d 364, 365 (5 th Cir. 1997) i United States v. OrozcoRamirez, 211 F.3d 862, 867 (5 th Cir. 2000). For the reasons discussed herein, The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed. Pursuant to Rule 22 (b) of the Federal Rules of Appellate Procedure, Rule II(a) of the Rules Governing Section 2254 Cases in 4 the United States District Court, and 28 U.S.C. reasons discussed certificate of herein, the appealability court be, and § further is 2253(c), for the ORDERS hereby, that denied, a as petitioner has not made a substantial showing of the denial of a constitutional right. ~~____ , SIGNED September ____ 5 2011.

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