Whitson v. Stephens, No. 4:2013cv02553 - Document 4 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis; dismissing with prejudice 1 Petition for Writ of Habeas Corpus; and denying COA. (Signed by Judge Sim Lake) Parties notified.(glyons, 4)
Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JOHN EUGENE WHITSON, TDCJ-CID NO. 413857, § § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-13-2553 MEMORANDUM OPINION AND ORDER TDCJ inmate John Eugene Whitson has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) challenging a twenty-seven year old state court conviction under 28 U.S.C. § 2254. The petition will be dismissed as successive and untimely. Whitson was convicted of burglary of a building in 1986. State v. Whitson, No. 451583 (263rd Dist. Ct., Harris County, Tex., Jan. 14, 1986). The Court of Appeals for the Fourteenth District of Texas affirmed the conviction the following year. Whitson v. State, No. A14-86-052-CR, 1986 WL 10971 (Tex. App. -- Houston [14th Dist.] Oct. 2, 1986). Whitson filed numerous post-conviction challenges in the state courts including an application for writ of mandamus and seven applications for a state writ of habeas corpus, all of which were either denied or were dismissed by the Texas Court of Criminal Appeals as successive per article 11.07, § 4 of the Texas Code of Criminal Procedure. Feb. 19, 2003) (Tex. Crim. Ex parte Whitson, 1990 ) App. Oct. 1, 9,790-06 Ex parte Whitson, ( deni e d); Feb. 15, 1989) 9,790-08 (Tex. Crim. App. (dismissed as successive); Ex parte Whitson, 9,790- 07 (denied); Ex parte Whitson, 1997) (Tex. (dismissed Crim. 9,790-05 .=:E""x"---....tp"-'a"-'r=--'='t.",e'---"Wh.:..:i=...;t""'s=o.:.=n, .... as App. (Tex. Jan. Crim. 9,790-04 successive); 25, App. (Tex. 1995) June 13, Crim. App. (denied); Ex parte Whitson, 9,790-03, 9,790-02 (Tex. Crim. App. Jan. 6, 1988) (denied); Ex parte Whitson, 9,790-01 (Tex. Crim. App. Apr. 15, 1989) (denied). Whitson also filed a request for appointment of counsel for assistance in filing a motion for DNA testing, 2002. 28, See Whitson v. State, No. 14-02-01168-CR, 2002 WL 31718882 (Tex. App. court which the state trial court granted on August -- Houston later denied [14th Dist.] Whitson's Dec. request 5, 2002). for DNA However, testing the after determining that he did not meet his burden of demonstrating that there was evidence available that could be tested. Id. The Fourteenth Court of Appeals dismissed Whi tson' s appeal as untimely. Id. -2- whitson has also submitted numerous filings in federal courts collaterally attacking his 1986 burglary conviction. He filed his first federal petition for a writ of habeas corpus on September 4, 1991, and the petition was dismissed on the merits. Collins, No. H-91-2554 (S.D. Tex. Mar. 23, 1993). appeal, Whitson v. Whitson filed an which the United States Court of Appeals for the Fifth Whitson v. Circuit dismissed as untimely. (5th Cir. July 9, 1993). Collins, No. 93-2422 Whitson filed a second habeas petition in the Western District of Texas challenging a forfeiture of good-time credit. That petition was dismissed for failure to state a claim. Whitson v. Scott, No. W-95-CA-077 Fifth Circuit Whitson v. dismissed Johnson, the (W.D. Tex. Sep. 1, 1995). subsequent appeal 81 F.3d 155, 1996 WL 101360 (not selected for publication). as The frivolous. (5th Cir. 1996) Whitson filed another federal habeas petition in the Southern District of Texas on October 26, 1995. See Whitson v. Johnson, No. H-95-5023 (S.D. Tex.). petition he raised the following claims for relief: assistance of counsel, ineffective lack of probable cause to arrest, probable cause to indict, In that lack of fundamentally defective complaint, and failure to quash defective enhancement. Id. The court found that most of the grounds had been previously raised in the first federal petition and dismissed the 1995 petition for abuse of writ. Id. The Fifth Circuit denied Whitson's subsequent application for a certificate of appealability. Whitson v. (5th Cir. Jan. 24, 1997). -3- Johnson, No. 96-20842 Whitson's current grounds for relief: the denial of habeas petition includes the following the prosecution's censorship of its witnessesi DNA evidence, improper and See Docket Entry No. ineffective assistance of counsel. identification, I-I, pp. 1-3. Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the present action is barred as a habeas challenge to a state court conviction. successive 28 U.S.C. § federal 2244(b). Because of the prior dismissal on the merits, Whitson must first obtain permission from the United States Court of Appeals for the Fifth Circuit before filing another habeas petition. § 2244(b) (3). 28 U.S.C. Whitson has previously filed a federal petition for a writ of habeas corpus, which was dismissed because it included claims that had been previously raised. See No. H-95-5023. There is no indication that the Fifth Circuit has granted permission to Whitson to file the current petition. Without such authorization this action must be dismissed for lack of jurisdiction. v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010) Williams Hooker v. Sivley, 187 i F.3d 680, 681-82 (5th Cir. 1999). In addition to being barred as successive, the court also concludes that this action would be barred as untimely under the AEDPA because Whitson is challenging a conviction that was final more than twenty-five years ago. See 28 U.S.C. (one-year limitation period for filing of conviction becomes final). § § 2244(d) (1) (A) 2254 petition after His previous federal habeas petitions -4- did not toll the limitations period. 2120, 2129 (2001) not Duncan v. Walker, 121 S. Ct. (application for federal habeas corpus review is "application for State post-conviction or other collateral review, Grooms wi thin the meaning of the AEDPA's tolling provision) II v. Johnson, 208 F.3d 488 (5th Cir. i Habeas 1999). petitioners are usually given an opportunity to respond when the court screening their federal habeas petitions finds them to be untimely. See Day v. McDonough, 126 S. Ct. 1675, 1684 (2006) The court finds that a response is not warranted in this proceeding since Whitson's petition is successive as well as time-barred. Before Whitson can appeal the dismissal of his petition, he must obtain a COA. 28 U.S.C. § 2253. In order to obtain a COA Whitson must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. II Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). A COA will be denied because this action is clearly barred, and Whitson has not made a substantial constitutional right. showing See Resendiz v. of the Quarterman, denial of 454 F.3d 456 (5th Cir. 2006) Conclusion and Order The court ORDERS the following: 1. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) will be dismissed with prejudice. 2. Petitioner's Application to Proceed In Pauperis (Docket Entry No.2) is GRANTED. -5- a Forma 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 for the State of Texas. SIGNED at Houston, Texas, on this 2nd day of October, 2013. UNITED STATES DISTRICT JUDGE -6-