Hoza v. Stephens, No. 4:2014cv01099 - Document 6 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for a Writ of Habeas Corpus by a Person in State Custody, denying 2 APPLICATION to Proceed In Forma Pauperis. 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 STANLEY PHILLIP HOZA, TDCJ # 765918, § § § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-14-1099 MEMORANDUM OPINION AND ORDER TDCJ inmate Stanley Phillip Hoza has filed a petition for a writ of habeas corpus (Docket Entry No.1) challenging a pair of 17 year old state court convictions under 28 U.S.C. § 2254. The petition, which is the second one challenging the same state court convictions, will be dismissed as successive and untimely. I. Hoza is PROCEDURAL HISTORY AND CLAIMS serving two concurrent aggravated sexual assault of a child. a jury and pleading guilty convicted Hoza in 1996. to the 40 year sentences for After waiving his right to charges, the trial court State v. Hoza, Nos. 703117; 703118 (183rd Dist. Ct., Harris County, Tex., Oct 7, 1996). The Court of Appeals for the Fourteenth District of Texas affirmed the convictions. Hoza v. State, Nos. 14-96-01301-CR, 14-96-01301-CR; 1998 WL 148323 (Tex. App. Houston [14th Dist.] Apr. discretionary review (PDR) was filed. 2, 1998). No petition for Hoza filed four applications for a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure challenging his convictions. on September 15, 1998. The first two applications were filed See Harris County District Clerk Website, http://www.hcdistrictclerk.com/. The Texas Appeals denied both applications on March 3, Johnson, No. H-99-3021 40,484-01, 02 (S. D. (Tex. Crim. App.). applications on January 8, pending. Id., Tex.), Court of Criminal 1999. See Hoza v. citing Ex parte Hoza, Nos. Hoza filed his third and fourth 1999, while the first two were still citing Nos. 40,484-03, 04. The Court of Criminal Appeals denied both applications without a written order on May 19, 1999. Id.; see also Court of Criminal Appeals Website, http://www.cca.courts.state.tx.us. Hoza filed a federal petition for a writ of habeas corpus challenging the two aggravated sexual assault convictions on or about September 13, 1999. The United States District Court for the Southern District of Texas granted the respondent's motion for summary judgment and dismissed the petition on September 13, 1999. Hoza v. Johnson, No. H-99-3021. Hoza filed an application for a certificate of appealability which was denied by the United States Court of Appeals for the Fifth Circuit. Hoza v. Cockrell, No. 01- 20848 peti tion (5th Cir. Jan. 11, 2002). certiorari was filed. -2- No for a writ of Hoza filed two federal habeas appeals dismissed article 11.07, more petition § state was habeas rejected. applications Court The of his Criminal successive per 4 of the Texas Code of Criminal Procedure. Ex both of the as after applications parte Hoza, No. 40,484-05 (Tex. Crim. App. Apr. 17, 2013); Ex parte Hoza, No. 40,484-06 (Tex. Crim. App. Oct. 21, 2013). Hoza filed the current petition on April 11, 2014. He asserts that he was wrongly convicted because the state district his criminal proceeding was not judge presiding at authorized pronounce judgment because he had not filled out the necessary paperwork before taking office (Docket Entry No.1, p. 4). to Hoza contends that this issue had not been previously raised because he had only recently obtained the supporting documentation from the Office of the Secretary of the State of Texas. II. Under (AEDPA), the SUCCESSIVE PETITION Anti-Terrorism the present rd. at 9. action and is Effective barred as habeas challenge to a state court conviction. a Death Penalty Act successive 28 U.S.C. Because of the prior dismissal on the merits, federal 2244(b). § Hoza must first obtain permission from the United States Court of Appeals for the Fifth Circuit before § 2244 (b) (3). filing another habeas petition. 28 U. S. C. There is no indication that the Fifth Circuit has granted permission for Hoza to file the current petition. Without such authorization, lack of this action must -3- be dismissed for jurisdiction. Williams v. Thaler, 602 F. 3d 291, 2010); Hooker v. Sivley, 187 F.3d 680, 681-82 III. 301 (5th Cir. (5th Cir. 1999). STATUTE OF LIMITATIONS In addition to being barred as successive, this action would be barred as untimely under AEDPA because Hoza is challenging convictions that were final u.S.C. (one year limitation period for filing of § 2244 (d) (1) (A) nearly sixteen years ago. 2254 petition after conviction becomes final). See 28 His convictions became final on May 2, 1998, thirty days after the Fourteenth Court of Appeals affirmed the district court judgments on April 2, 1998. See TEX. R. ApP. PROC. 68.2 (a) (West 1998) (PDR must be filed no more than thirty days after the Court of Appeals issues its opinion affirming a criminal judgement); 690, 693 (5th Cir. 2003) Roberts v. Cockrell, 319 F.3d (the limitations period commenced when the period for filing a PDR in state court ended), citing TEX. R. ApP. PROC. 68.2 (a) . Hoza filed his first two state habeas applications on September 15, 1998, 136 days after his convictions became final. He filed two more applications before the first two were dismissed on March 3, 1999. The Court of Criminal Appeals denied the third and fourth applications on May 19, 1999. was tolled applications. during 28 the U.S.C. pendency § of The limitations period the 2244 (d) (2). four state However, the habeas period recommenced after the Court of Criminal Appeals denied the third -4- and fourth state applications. See Flanagan v. Johnson, 154 F.3d 196, Consequently, 199 n.1 (5th Cir. 1998). Hoza's limitations period expired 229 days later on January 3, 2000. Hoza's previous limitations period. federal habeas petition did not toll the Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001) (application for federal habeas corpus review is not "application for State post-conviction or other collateral review," wi thin meaning of AEDPA's tolling provision); Grooms v. Johnson, 208 F.3d 488 (5th Cir. 1999). (filed in 2013) filed well Scott v. did not toll the limitations because they were after Palacios v. His fifth and sixth state habeas applications the Stephens, Johnson, habeas limitations 723 F.3d 600, 227 F.3d 260, 604 263 period had (5th Cir. (5th expired. 2013), citing Cir.2000), citing § 2244 (d) (2). Hoza contends that he did not previously raise the state district judge's alleged disqualification because he did not have access to the information before he obtained the documents from the Secretary of State. Hoza is not entitled to relief because he has failed to demonstrate that he made a diligent effort to discover the alleged impropriety or that he was unreasonably prevented from doing so. Starns v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008). Habeas petitioners are usually given an opportunity to respond when the court screening their federal habeas petitions find them to be untimely. See Day v. McDonough, 126 S.Ct. 1675, 1684 (2006). -5- The court finds that a response is not warranted in this proceeding since Hoza's petition is successive as well as time-barred. IV. CERTIFICATE OF APPEALABILITY (COA) Before Hoza can appeal the dismissal of his petition, he must obtain a COA. 28 U.S.C. § 2253 In order to obtain a COA, Hoza must demonstrate that "reasonable jurists would find the district court's wrong." assessment of the Slack v. McDaniel, constitutional claims 120 S.Ct. 1595, 1604 debatable (2000). or A COA shall be denied because this action is clearly barred, and Hoza has not made a substantial showing of the denial of a constitutional right. See Resendiz v. Quarterman, 454 F.3d 456 (5th Cir. 2006). V. 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) is DISMISSED WITH PREJUDICE. 2. The Application to Proceed In Forma Pauperis (Docket Entry No.2) is DENIED because the petitioner's Inmate Trust Fund Record reflects deposits during the last six months which were sufficient to pay the $5.00 filing fee. 3. A Certificate of Appealability is DENIED. 4. The Clerk will provide a copy of this Memorandum Opinion and Order to the petitioner and the Attorney General of the State of Texas. SIGNED at Houston, Texas, on SIM LAKE UNITED STATES DISTRICT JUDGE -6-
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