United States District Court, S.D. Texas, Houston Division
CLYDE E. SOPHUS, Petitioner,
BRYAN COLLIER, et al, Respondents.
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge.
Clyde Sophus is an inmate in the custody of the Texas
Department of Criminal Justice (“TDCJ”). He was
convicted in the 262nd Judicial District Court of
Harris County, Texas of two counts of aggravated robbery, and
sentenced to concurrent 30 year terms of imprisonment. He was
subsequently convicted in the 12th Judicial
District Court of Madison County, Texas of possession of a
weapon in a penal institution and sentenced to a consecutive
four year term of imprisonment. He does not challenge these
convictions, but contends that the TDCJ has incorrectly
extended his sentence based on the Madison County conviction
and forfeited street credit time.
filed the instant petition on August 24, 2017. Respondent
moved for summary judgment on the grounds that the petition
is successive and is time-barred. Sophus did not respond to
a second or successive application permitted by this section
is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the application.'' 28
U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518
U.S. 651, 664 (1996) (''The Act requires a habeas
petitioner to obtain leave from the court of appeals before
filing a second habeas petition in the district
court.''). ''Indeed, the purpose and intent
of [28 U.S.C. § 2244(b)(3)(A)] 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)).
filed a prior petition raising the same issues. See
Sophus v. Dretke, No. 4:05-cv-1694. That petition was
dismissed on October 19, 2005. Because these claims have
already been raised and rejected in a federal habeas corpus
petition, Sophus' current petition is successive.
Court is without jurisdiction to consider a successive
petition. See Key, 205 F.3d at 774
(''Accordingly, ' 2244(b)(3)(A) acts as a
jurisdictional bar to the district court's asserting
jurisdiction over any successive habeas petition until [the
circuit court] has granted the petitioner permission to file
one.''). Because this Court lacks jurisdiction to
consider Sophus' petition, the petition must be dismissed
for lack of subject matter jurisdiction.
Certificate of Appealability
has not requested a certificate of appealability
(“COA”), but this court may determine whether he
is entitled to this relief in light of the foregoing rulings.
See Alexander v. Johnson, 211 F.3d 895, 898(5th Cir.
2000) (“It is perfectly lawful for district court's
[sic] to deny a COA sua sponte. The statute does not
require that a petitioner move for a COA; it merely states
that an appeal may not be taken without a certificate of
appealability having been issued.”) A petitioner may
obtain a COA either from the district court or an appellate
court, but an appellate court will not consider a
petitioner's request for a COA until the district court
has denied such a request. See Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1988); see
also Hill v. Johnson, 114 F.3d 78, 82
(5th Cir. 1997) (“[T]he district court
should continue to review COA requests before the court of
appeals does.”). “A plain reading of the AEDPA
compels the conclusion that COAs are granted on an
issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116
F.3d 149, 151 (5th Cir. 1997).
may issue only if the petitioner has made a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see also
United States v. Kimler, 150 F.3d 429, 431
(5th Cir. 1998). A petitioner “makes a
substantial showing when he demonstrates that his application
involves issues that are debatable among jurists of reason,
that another court could resolve the issues differently, or
that the issues are suitable enough to deserve encouragement
to proceed further.” Hernandez v. Johnson, 213
F.3d 243, 248 (5th Cir.), cert. denied,
531 U.S. 966 (2000). The Supreme Court has stated that
Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated where . . . the
district court dismisses the petition based on procedural
grounds. We hold as follows: When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Court has carefully considered Sophus' petition. This
Court concludes that jurists of reason would not find it
debatable that Sophus' petition is successive. Therefore,
Sophus is not entitled to a certificate of appealability.
foregoing reasons, it is ORDERED that respondent's motion
for summary judgment (Doc. # 19) is GRANTED. It is FURTHER
ORDERED that petitioner Clyde E. Sophus' petition for a
writ of habeas corpus (Doc. # 1) is DISMISSED WITHOUT
PREJUDICE FOR LACK OF ...