Lane v. Thaler, Director TDCJ-CID, No. 4:2013cv00069 - Document 6 (N.D. Tex. 2013)

Court Description: Memorandum Opinion and Order: The court ORDERS that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed as successive. Petitioner's pending motion for an evidentiary hearing is denied. The court further ORDERS that a certificate of appealability is denied. (Ordered by Judge John McBryde on 2/6/2013) (dnw)

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Lane v. Thaler, Director TDCJ-CID Doc. 6 IN THE UNITED STATES DISTRICT CO RT FOR THE NORTHERN DISTRICT OF TE FORT WORTH DIVISION CLERK Us D .ny_' " JAMES WILLIAM LANE, § lSTRICTCOun -- Deputy § Petitioner, f -J § § v. § No. 4:13-CV-069-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, James William Lane, a state prisoner currently incarcerated in Livingston, Texas, against Rick Thaler, Director of the Texas Department of Criminal Justice, Correctional Institutions Division, respondent. service has issued upon respondent. No 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. I. FACTUAL AND PROCEDURAL HISTORY The history relevant to this case is set forth in the magistrate judge's findings and conclusions in Lane v. Johnson, Dockets.Justia.com Civil Action No. 4:00-CV-596-A. Petitioner is serving a 30-year sentence on his 1995 conviction for aggravated robbery causing bodily injury to an elderly person in the Criminal District Court Number Four of Tarrant County, Texas. prior federal petitions pursuant to § challenging the same state conviction. Petitioner has filed two 2254 in this court See Lane v. Thaler, Civil Action No. 4:12-CV-523-A (dismissed as a successive petition) i Lane v. Johnson, Civil Action No. 4:00-CV-596-A (denied on the merits). The court takes judicial notice of the pleadings and state court records filed in petitioner's prior federal habeas actions. II. Title 28 U.S.C. § SUCCESSIVE PETITION 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. Cir. 2003) i In Petitioner re See Crone v. Cockrell, 324 F.3d 833, 837 (5 th Cain, raises 137 F.3d seven grounds claiming trial court error , 234, in 235 the (5 th instant ineffective assistance, 2 Cir. 1998). petition, and actual innocence. (Attach. to Pet. at 6-7) Petitioner's claims were or could have been raised in his first federal petition. Thus, as with his second § 2254 petition, this petition is successive on its face. Petitioner has been instructed that before he 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 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. In re Epps, 127 F.3d 364, 365 (5 th Cir. 1997); United States v. Orozco- Ramirez, 211 F. 3d 862, 867 (5 th Cir. 2000). 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. dismissed as successive. 1 The § 2254 be, court and is hereby, further ORDERS that petitioner's pending motion for an evidentiary hearing be, and is hereby, denied. Pursuant to Rule 22 (b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases in IAlthough petitioner did not pay the $5.00 filing fee or file an application to proceed in forma pauperis, a notice of deficiency was not issued because his petition is successive and barred under §2244(b). 3 the United States District Court, and 28 U.S.C. reasons discussed certificate petitioner of has herein, the appealability not court be, demonstrated § further 2253(c), for the ORDERS and is hereby, that the Fifth that denied, Circuit a as has authorized him to file a successive petition nor has he made a substantial showing of the denial of a constitutional right. SIGNED February __ ____ , 2013. 4

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