United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
H. BENNETT UNITED STATES DISTRICT JUDGE.
petitioner, Robert Kevin Boulds, seeks a writ of habeas
corpus to challenge a state court judgment under 28 U.S.C.
§ 2254. He has also filed a motion for leave to proceed
in forma pauperis. After considering all of the
pleadings, and the applicable law, the Court dismisses this
case for reasons that follow.
is currently incarcerated in the Texas Department of Criminal
Justice -Correctional Institutions Division (TDCJ) as the
result of his 2005 conviction in Harris County Cause Number
996316. Boulds was convicted of aggravated sexual assault of
a child under age 14 and sentenced to 50 years'
imprisonment. The First Court of Appeals of Texas affirmed
Boulds's conviction on direct appeal. Boulds v.
State, No. 01-05-00596-CR, 2006 WL 2974301 (Tex.
App.-Houston [1st Dist.] 2006, pet. ref d). Boulds has filed
five applications for a state writ of habeas corpus under
Article 11.07 of the Texas Code of Criminal Procedure, all of
which were dismissed or denied by the Texas Court of Criminal
Appeals. See Ex parte Boulds, Application Nos.
WR-72, 089-01, WR-72, 089-02, WR-72, 089-03, WR-72, 089-04,
and WR-72, 089-11.
federal habeas corpus petition dated November 30, 2017,
Boulds contends he is entitled to relief because the
indictment in his underlying case was never filed with the
court, rendering his judgment of conviction void. Boulds
asserts that the lack of a file stamp date on the indictment
is proof that it was never filed.
records reflect that Boulds has filed two previous federal
habeas corpus petitions to challenge his 2005 conviction for
aggravated sexual assault of a child under age 14. See
Boulds v. Stephens, Civil Action No. 4:16-cv-0535 (S.D.
Tex. 2016) (petition dismissed as successive); Boulds v.
Thaler, Civil Action No. 4:10-cv-1799 (S.D. Tex. 2011)
(petition dismissed with prejudice on the
pending petition filed by Boulds in this case is an
unauthorized successive application under 28 U.S.C. §
2244(b). In that respect, before a second or successive
application permitted by this section is filed in the
district court, the applicant must move in the appropriate
court of appeals for an order authorizing the district court
to consider the application. See 28 U.S.C. §
2244(b)(3)(A). If the pending petition qualifies as a
successive writ, this Court has no jurisdiction to consider
it absent prior authorization from the Fifth Circuit.
Fifth Circuit has recognized that "a prisoner's
application is not second or successive simply because it
follows an earlier federal petition." In re
Cain, 137 F.3d 234, 235 (5th Cir. 1998). Rather, a later
application is successive when it: (1) raises a claim
challenging the petitioner's conviction or sentence that
was or could have been raised in an earlier petition; or (2)
otherwise constitutes an abuse of the writ.'"
Id.; see also United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
Boulds fails to demonstrate why he could not have raised the
instant claim in his original federal habeas petition. And
court records reflect that Boulds raised a similar claim in
his second federal habeas petition. See Boulds,
Civil Action No. 4:16-cv-535, (Docket Entry No. 3, at 5),
(asserting claim of actual innocence based on void
indictment). Thus, the pending petition meets the
issue of whether a habeas corpus petition is successive may
be raised by the district court sua sponte. See Rodriguez
v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). Because
the pending petition is successive, Boulds 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). "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 found that those challenges had some
merit." United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000) (citing In re Cain, 137 F.3d 234,
235 (5th Cir. 1998)). Absent such authorization, this Court
lacks jurisdiction over the petition. Id. at 775.
Accordingly, the petition must be dismissed as an
unauthorized successive writ.
Certificate of Appealability
of the Rules Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner.
See 28 U.S.C. § 2253. A certificate of
appealability will not issue unless the petitioner makes
"a substantial showing of the denial of a constitutional
right, " 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate "that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong." Tennard
v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)). Under the
controlling standard, this requires a petitioner to show
"that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were 'adequate to deserve encouragement to proceed
further.'" Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). Where denial of relief is based on
procedural grounds, the petitioner must show not only that
"jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right, " but also that they "would
find it debatable whether the district court was correct in
its procedural ruling." Slack, 529 U.S. at 484.
district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. See Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000). For reasons set forth above, this Court
concludes that jurists of reason would not debate whether any
procedural ruling in this case was correct or whether the
petitioner states a valid claim for relief. Therefore, a
certificate of appealability will not issue.