Parker v. Stephens, No. 4:2015cv01067 - Document 18 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting 11 MOTION for Summary Judgment with Brief in Support, dismissing without prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
<![CDATA[
Parker v. Stephens Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION STEVE VIC PARKER, a/k/a JERRY WILSON, TDCJ NO. 590690, § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-15-1067 MEMORANDUM OPINION AND ORDER The petitioner, Steve Vic Parker, also known as Jerry Wilson (TDCJ No. 590690), seeks a writ of habeas corpus under 28 U.S.C. § Pending 2254 to challenge the administration of his sentence. before the court is Respondent's Motion for Summary Judgment with Brief in Support No. 11). ("Motion for Summary Judgment") (Docket Entry The petitioner has filed Objections in Response to the Respondent's Motion for Summary Judgment (Docket Entry No. 17). After considering all of the pleadings, the state court records, and the applicable law, motion and will dismiss the court will grant this action for the the respondent's reasons explained below. I. The petitioner is Background currently incarcerated by the Texas Department of Criminal Justice - Correctional Institutions Division Dockets.Justia.com ("TDCJ") as conviction. the result of more than one underlying criminal Complicating the administration of his sentence is the fact that the petitioner has been convicted under more than one name. On April 25, 1991, the petitioner was convicted under the name "Jerry Wilson a/k/a Steve Parker" of unauthorized use of a motor vehicle in Bell County cause number 39,082. 1 received a 20-year prison sentence in that case. 2 was released on parole in 1992. 3 petitioner was convicted on "Steve Vic Parker, i, The petitioner The petitioner While on supervised release the October 13, 2010, under the name of two counts of theft in McLennan County cause number 2010-447-C1. 4 The petitioner was sentenced to serve seven years on each count to run consecutively to the 20-year sentence that the petitioner received in 1991 in Bell County cause number 39,082. 5 The petitioner challenged the calculation of his consecutive sentences by filing several time-credit disputes with TDCJ pursuant 1Judgment on Plea of Guilty or Nolo Contendere Before Court [and] Waiver of Jury Trial, Exhibit B to Motion for Summary Judgment, Docket Entry No. 11-3, p. 2. 2Id. 3Affidavit of Charley Valdez ("Valdez Affidavit"), Exhibit C to Motion for Summary Judgment, Docket Entry No. 11-4, p. 3. 4Judgment of Conviction by Jury Nunc Pro Tunc, Exhibit A to Motion for Summary Judgment, Docket Entry No. 11-2, pp. 2, 4. 5Id. -2- to § 501.0081 of the Texas Government Code. 6 An administrative official reviewed the petitioner's records and found "no error in his current time calculations."? In 2013 the petitioner filed a federal habeas corpus action challenging the calculation of his stacked sentences. v. Thaler, Civil Action No. H-13-0974 (S.D. Tex.). See Wilson He raised a number of claims concerning the commencement of his seven-year sentence for theft and the effect on his eligibility for mandatory supervision with respect to the 20-year sentence that he received for unauthorized use of a motor vehicle. 8 The district court denied relief and dismissed the petition with prejudice on February 24, 2014. The petitioner's appeal was dismissed as untimely filed. See Wilson v. Thaler, No. 14-20274 (5th Cir. July 23, 2014). On April 23, 2015, the petitioner filed this federal habeas action raising consecutive another sentences. 9 challenge Noting to that the calculation TDCJ intake of his personnel processed him in 2010 as Steve Vic Parker and then re-processed him in 2011 as Jerry Wilson, the petitioner argues that his sentences 6Valdez Affidavit, Exhibit C to Motion for Summary Judgment, Docket Entry No. 11-4, p. 5. ?Id. 8See Memorandum of Law, attached to Petition, No. 1-2, in Civil Action No. H-13-0974. Docket Entry 9Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition"), Docket Entry NO.1. -3- were "started and stopped and restarted illegally."lo Reasoning further that a prisoner cannot be required to serve a sentence "in installments," "void." 11 the petitioner Arguing that argues that his the petitioner could have sentences are raised these claims in the federal habeas corpus proceeding that he filed in 2013, the respondent moves for summary judgment on the grounds that the Petition is a U.S.C. successive application that is barred by 28 2244(b) for lack of authorization. § II. Discussion This case is governed by the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C. § 2244(b), which was enacted to make it "significantly harder for prisoners filing second or successive federal habeas applications under 28 U.S.C. claims." § 2254 to obtain hearings on the merits of their Graham v. Johnson, Before a 168 F.3d 762, 772 (5th Cir. 1999). second or successive application is filed in district court, the applicant must move in the appropriate court of appeals for an order application. authorizing 28 U.S.C. § the district 2244(b) (3) (A). court to consider the If the pending petition qualifies as a successive writ, this court has no jurisdiction to consider it absent prior authorization from the Fifth Circuit. lOMemorandum in Support, Docket Entry No.2, pp. 1-2. 11Id. -4- The Fifth Circuit has recognized that "a prisoner's application is not second or successive simply because it follows an earlier federal petition." Cir. 1998) successive" Instead, when it: a In re Cain, 137 F.3d 234, 235 (5th subsequent (1 ) "raises application a claim is "second or challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition"; or (2) abuse of the writ." "otherwise constitutes an Id.; see also United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). The claim presented in this case arises from the petitioner's allegation that his consecutive sentences started and stopped when he was processed twice names. -- in 2010 and 2011 under different The petitioner knew the facts necessary to challenge the administration of his consecutive sentences before he filed his previous federal petition in 2013. 12 His pending Petition therefore qualifies as a second or successive application within the meaning of 28 U.S.C. § 2244(b). See Crone v. Cockrell, 324 F.3d 833, 837- 38 (5th Cir. 2003). Because the pending petition is successive, the petitioner is required to seek authorization from the Fifth Circuit before this court can consider his application. See 28 U.S.C. § 2244(b) (3) (A). 12A review of the Petition filed in 2013 shows that the petitioner included facts about being processed and reprocessed under different names and TDCJ identification numbers in support of his claim for relief. See Statement of the Facts, attached to Petition, Docket Entry No. I-I, pp. 2-3, in Civil Action No. H-130974. -5- "Indeed, the purpose of [28 U.S.C. 2244(b)] was to eliminate the § need for the district courts to repeatedly consider challenges to the same conviction unless an appellate panel first those challenges had some merit." 773, 774 (5th Cir. 2000) found that United States v. Key, 205 F.3d (citing In re Cain, 137 F.3d at 235). The petitioner has not obtained the requisite authorization in this case. Absent such authorization this court lacks jurisdiction over the Petition. Respondent's Id. at 775. Motion for Accordingly, the court will grant the Summary Judgment and will dismiss the Petition as an unauthorized successive writ. III. Because Certificate of Appealability the habeas corpus petition filed in this case is governed by the AEDPA, a certificate of appealability is required before an appeal may proceed. v. Johnson, 118 F. 3d 1073, See 28 U.S.C. 1076 (5th Cir. actions filed under either 28 U.S.C. certificate of § appealability). § 2253; see Hallmark 1997) 2254 or "This is (noting that 2255 require a § a jurisdictional prerequisite because the COA statute mandates that \ [u] nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals[.]'" Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C. Miller-El v. § 2253 (c) (1)). A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). -6- See The court concludes that jurists of reason would not debate whether the procedural ruling in this case was correct or whether the Petition qualifies as a successive application within the meaning of 28 U.S.C. § 2244(b). Accordingly, a certificate of appealability will not issue in this case. IV. Conclusion Based on the foregoing, the court ORDERS as follows: 1. The Respondent's Motion for Summary (Docket Entry No. 11) is GRANTED. Judgment 2. Steve Vic Parker a/k/a Jerry Wilson's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DISMISSED without prejudice for lack of jurisdiction. 3. A certificate of appealability is DENIED. The Clerk will provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 7th day of August, 2015. SIM LAKE UNITED STATES DISTRICT JUDGE -7-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
