Lane v. Director TDCJ, No. 4:2012cv00523 - Document 20 (N.D. Tex. 2012)

Court Description: Memorandum Opinion and Order: After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed as successive. (See order for specifics.) (Ordered by Judge John McBryde on 10/1/2012) (mdf)

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Lane v. Director TDCJ Doc. 20 t s DI ; STRI C OURT CT NORTHERN DI STRI OFTEXAS CT IN THE UN ITED STATES DISTRICT CO RT FOR THE NORTHERN DISTRICT OF TE s ;; FORT WORTH DIVISION FI LED g J . ja j g 2 . CLERK,U. DI & STRI CTCOURT fI By JAMES WILLIAM LANE, 5 Petitioner, No . 4 :12-CV -523-A V. RICK THALER , Director, Texas Department of Criminal Justice, Correctional Institutions Division , Respondent . 5 5 5 5 5 MEMOKAHDUM OPINION ORDER This is a petition for writ of habeas Corpus pursuant to 28 U .S .C . 5 2254 filed by petitioner, James William Lane , a state prisoner currently incarcerated in Livingston , Texas, against R ick Thaler , D irector of the Texas Department of Criminal Justice , Correctional Institutions Division , respondent . A fter having considered the p leadings, state court records , and relief sought by petitioner , the court has concluded that the petition should be dism issed as successive . FACTUAL AND PROCEDUPAL HISTORY Petitioner is serving a 3o-year sentence on his 1995 conviction for aggravated robbery causing bodily injury to an elderly person in the Criminal District Court Number Four of Dockets.Justia.com Tarrant County , Texas . Petitioner has previously sought federal postconviction habeas relief challenging the same conv iction . See Lane v . JoAnson , Civil Action No . 4 :00-CV -596-A . The court takes judicial notice of the pleadings and state court records filed in petitioner 's pripr federal habeas action . II . SuccEsslvE PETITION Title 28 U . . 5 2244( requires dismissal of a second or S C. 5) successive petition filed by a state prisoner under 5 2254 unless specified conditions are met . 28 U.S. C. 5 2244( ( 5) 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. See Crone v. Cockrell, 324 F. 833, 837 ( h 3d 5t Cir. 2003)7 Tn re Cain, 137 F. 3d 234, 235 ( h Cir. 1998). 5t Petitioner raises four grounds in the instant petition, which were or could have been raised in his prior federal petition . Thus, this petition is successive on its face . Before a petitioner may file a successive 5 2254 petition , he must obtain authorization from the appropriate court of appeals . 28 U . . . 5 2244 ( ( ( . S C b) 3) A) Petitioner has not demonstrated that he has obtained leave to file this petition from the Fifth Circu it Court of Appeals . Thus , this court is without jurisdiction to consider the petition . 2 Tn re Epps, 127 F. 364, 365 ( h Cir . 1997)7 Unïted States 3d 5t Orozco- Ramrez, 2tI F. 862, 867 ( h Cir. 2000). 3d 5t For the reasons discussed herein , The court ORDERS respondent 's motion to dismiss be, and is hereby , granted , and the petition of petitioner for a writ of habeas corpus pursuant to 28 U . S .C . 5 2254 is dismissed . Pursuant to Rule 22 ( b) of the Federal Rules of Appellate Procedure, Rule 11( of the Rules Governing Section 2254 Cases in a) the United States District Court, and 28 U . C . 5 2253( S. c), for the reasons discussed certificate petitioner of has herein , the appealability not court be, and demonstrated that further is the ORDERS that a hereby , denied , as Fifth Circuit has authorized him to file a successive petition nor has he made a substantial showing of the denial of a constitutional right . SGE Otbr ) IND coe ,21 . 02 / z ' ?* ' . . OHN MCBRYDE >- 'rs L .> r , y .' . ' , z U TED STATES DIsT 1c% JUDGE XI . 7 . /

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