Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lowe v. Davis

United States District Court, N.D. Texas, Dallas Division

March 15, 2019

EDMOND STEVEN LOWE, Petitioner,
v.
LORIE DAVIS, Director, TDCJ-CID Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         Petitioner Edmond Lowe, a Texas prisoner, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. The District Court referred the resulting civil action to the United States magistrate judge, pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the petition should be transferred to the Fifth Circuit Court of Appeals as successive.

         I.

         On December 19, 1990, Petitioner was convicted of murder and was sentenced to sixty-five years in prison. The State of Texas v. Edmond Steven Lowe, No. F90-34490-P (203rd Jud. Dist. Ct., Dallas, Tex. Dec. 19, 1990). Petitioner does not challenge his conviction. Instead, he claims Respondent has unconstitutionally denied him release to parole.

         Petitioner previously filed a § 2254 challenging Respondent's decision to deny him release on parole. See Lowe v. Stephens, No. 3:13-cv-394-P (N.D. Tex.) On January 15, 2014, the District Court dismissed the petition as barred by the statute of limitations. On June 27, 2014, the Fifth Circuit denied a certificate of appealability. Lowe v. Stephens, No. 14-10090 (5th Cir. June 27, 2014).

         On February 26, 2018, Petitioner filed this § 2254 petition, and on July 9, 2018, he filed an amended petition. He argues:

1. Respondent has failed to credit his work and good time credits towards his sentence;
2. Respondent breached a contract with Petitioner to apply his work and good time credits towards his sentence;
3. Respondent's decision not to apply his work and good time credits towards his sentence denied him his property rights in these time credits;
4. Respondent's reasons for denying him parole are vague; and
5. Respondent has failed to apply the parole laws of the 70th Texas Legislature that were in effect at the time of Petitioner's conviction and therefore violated the Ex Post Facto Clause.

         On September 21, 2018, Respondent filed her answer arguing, among other things, that this petition is successive. On November 17, 2018, Petitioner filed a reply. The issue has thus been fully briefed.

         II.

         Respondent argues the petition is second or successive, and therefore the Court lacks jurisdiction to consider the petition. “A petition is not second or successive merely because it follows an earlier federal application.” Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). It is successive when it either presents a challenge to the petitioner's conviction or sentence that could have been raised in an earlier petition, or when it is an “abuse of the writ.” Id. at 836-38. To determine whether a petition is second or successive, the court must analyze whether the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.