Weems v. Stephens, No. 4:2013cv02931 - Document 4 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for a Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION WIDENER MICHAEL WEEMS, TDCJ NO. 1195351, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § § CIVIL ACTION NO. H-13-2931 MEMORANDUM OPINION AND ORDER Widener Michael Weems has filed a federal petition for a writ of habeas corpus challenging a state court felony conviction. 1 The petition will be DISMISSED as successive. Weems' habeas petition challenges a felony conviction and life sentence for murder. State v. Weems, No. 44,301-B (23rd Dist. Ct., Brazoria County, Tex. Sept. 5, 2003). After being found guilty and sentenced by the trial court Weems filed a direct appeal of the conviction, which the Court of Appeals for the Fourteenth District of Texas affirmed. Weems v. State, 167 S.W.3d 350 (Tex. App.-Hous. lWeems has submitted a typed petition entitled Motion to Vacate, Set Aside or Correct Sentence, Docket Entry No. I, p. 1. He has attached a document styled Memorandum in Support of § 2255 Motion to Vacate, Set Aside Sentence. Only prisoners held pursuant to federal convictions can file petitions under 28 U.S.C. § 2255. The court construes Weems' petition as a section 2254 petition because his arguments concern the validity of a state court judgment for which he is currently serving a life sentence. Weems then filed a Petition for [14th Dist.] 2005 r pet. refrd). Discretionary Review Appeals (PDR) He refused. r then which the filed Texas a Court Petition of for Criminal a Writ of Certiorari r which the United States Supreme Court denied on May 15 r 2006. Weems v. Texas r 126 S. Ct. 1135 (2006). Weems filed a state application for a writ of habeas corpus r which the Texas Court of Criminal Appeals denied without a written order. Ex parte Weems r No. (Tex. 2006). See Texas Court of Criminal Appeals Website r http://www. 65 r 256-01 Crim. App. cca.courts.state.tx.us/opinions/CaseSearch.asp. second state Appeals habeas dismissed as application r successive which the pursuant 9r He then filed a Court to Aug. of Article Criminal 11.07. Ex parte Weems r No. 65 r 256-02 (Tex. Crim. App. Jan. 17 r 2007). Before filing his current federal habeas petition Weems filed a federal petition for a writ of habeas corpus r which this court dismissed on the merits. Oct. 30 r 2009). Weems v. Thaler r No. H-07-590 (S.D. Tex. Weems filed three more state habeas applications r all of which were dismissed as successive by the Court of Criminal Appeals. 2011) i Ex parte Weems r No. 65 r 256-05 Ex parte Weems r No. 65 r 256-04 (Tex. Crim. App. Nov. 9 r (Tex. Crim. App. Apr. 15 r 2011) i Ex parte Weems r No. 65 r 256-03 (Tex. Crim. App. July lr 2009) http://www.cca.courts.state.tx.us/opinions/CaseSearch.asp. Under (AEDPA) the this Anti-Terrorism and action challenge to a is barred as Effective a successive state court conviction. -2- Death Penal ty Act federal 28 U.S.C. § habeas 2244 (b). Because of the prior federal petition, Weems must first obtain permission from the United States Court of Appeals for the Fifth Circuit § before filing another habeas petition. 28 U.S.C. There is no indication that the Fifth Circuit has 2244 (b) (3) . granted permission for Weems to file the current petition. Without such authorization, lack of this Hooker v. jurisdiction. action must Sivley, be dismissed for 187 F.3d 680, 681-82 (5th Cir. 1999) . In addition to being barred as successive, the court also concludes that this action is barred as untimely under the AEDPA because Weems is challenging a conviction that was final more than a § year before 2244 (d) (1) (A) the filing of this action. on the 28 (one-year limitation period for filing of petition after conviction becomes final). final See date the Supreme Court U.S.C. § 2254 Weems' conviction was denied his petition for certiorari, May 15, 2006. Medley v. Thaler, 660 F.3d 833, 834 (5th Cir. Cockrell, 2011) 2002) i Giesberg v. 288 F.3d 268, 270 (5th Cir. As noted above, Weems filed five state habeas applications and the periods of their pendency tolled the limitations period. 28 U.S.C. § 2244(d) (2). However, the time during which the prior federal action was pending did not toll the limitations period. Duncan v. Walker, 121 S. Ct. 2120, 2129 (2001). It is not clear from the records available at the Court of Criminal Appeals Website when each of the state habeas applications were filedi however, the last one was dismissed on November 9, -3- See No. 2011. The pending federal action was filed 65,256-05. more than a year after the cessation of the tolling period and, it therefore, limitations. is barred 28 U.S.C. by the AEDPA one-year statute of 2244(d). § Before Weems can appeal the dismissal of his petition, he must obtain a COA. 28 U.S.C. § In order to obtain a COA Weems 2253. must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims wrong." Slack v. McDaniel, 120 S. Ct. 1595, 1604 debatable (2000). or A COA shall be DENIED because this action is clearly barred, and Weems has not made a substantial constitutional right. showing See Resendiz v. of the Ouarterman, denial of a 454 F.3d 456 (5th Cir. 2006). Conclusion and Order The court ORDERS the following: 1. This petition for a writ of habeas corpus by a person in state custody (Docket Entry No.1) lS DISMISSED WITH PREJUDICE. 2. A Certificate of Appealability is DENIED. 3. 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 9th 2013. SIM LAKE UNITED STATES DISTRICT JUDGE -4-