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Fifth Circuit: Denial of Habeas Petition as Successive Reversed Where Second Petition Challenges a Separate Judgment, by Same Court, Not Covered in First Petition

by Chad Marks

In 1991, Steve Vic Parker was convicted in a state court in Texas for unauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years’ imprisonment. Parker was eventually released from prison on mandatory supervision and returned to prison for violating that supervision.

In 2010, Parker was convicted of two charges related to theft of less than $1,500.00 while on mandatory supervision. Those charges resulted in two seven-year terms of imprisonment to run consecutively to the 20-year term on the UUMV sentence. 

Parker in 2013 filed a habeas petition pursuant to 28 U.S.C. § 2254. In that petition, he argued that he had served enough time on the 20-year term for it to expire, which would then allow his new seven-year sentence to start. He raised an additional argument that the State violated the Ex Post Facto Clause by refusing to release him from custody for the 20-year term. The district court only considered the Ex Post Facto argument denying relief and a COA.

Shortly thereafter, the Texas Department of Criminal Justice (“TDCJ”) miscalculated Parker’s sentence running the seven-year term concurrently with the 20-year term and released him from prison. That release was short lived when a few months later the error was corrected, and Parker was returned to TDCJ custody. 

Again in 2015, Parker filed a habeas petition. This time, he argued his two seven-year sentences should have begun as soon as he returned to prison in 2010. The district court denied that petition, finding that the petition was successive and denied a COA. The Fifth Circuit granted a COA as to whether or not Parker’s § 2254 application was successive as to the judgments underlying the seven-year theft sentences.

The Fifth Circuit ruled that Parker’s 2013 habeas petition challenged only his 20-year sentence and that his current petition challenging his seven-year sentences concerns a new judgment and is therefore not successive.

The Court, in ruling in favor of Parker, explained that an application for relief pursuant to 28 U.S.C. § 2254 is not a second or successive petition simply because it follows an earlier petition, Crone v. Cockrell, 324 F.3d 833 (5th Cir. 2003). Additionally, the Court relied on Magwood v. Patterson, 561 U.S. 320 (2010), which made clear that the “phrase ‘second or successive’ must be interpreted with respect to the judgment challenged,” not the stretch of confinement being served by the challenger. 

The Court also explained it has previously rejected the position that “the prohibition against successive § 2254 petitions requires a prisoner to challenge all judgments from a single court in a single habeas petition.” Hardemon v. Quarterman, 516 F.3d 272 (5th Cir. 2008). The Court instructed in Hardemon that a prisoner is “permitted, but not required, to challenge his separate convictions in a single § 2254 petition.”  

Accordingly, the Court reversed the judgment of the district court and remanded for proceedings consistent with this opinion. See: Parker v. Davis, 914 F.3d 996 (5th Cir. 2019). 

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