Loften v. Court of Criminal Appeals of Texas—Austin

Fifth Circuit

Loften v. Court of Criminal Appeals of Texas—Austin

676 F. App'x 360

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 15, 2017

Docket15-51036

StatusUnpublished

This text of 676 F. App'x 360 (Loften v. Court of Criminal Appeals of Texas—Austin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Loften v. Court of Criminal Appeals of Texas—Austin, 676 F. App'x 360 (5th Cir. 2017).

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Opinion

PER CURIAM: *

Joseph Eric Loften, Texas prisoner # 616132, seeks a certificate of appealability (COA) to challenge the district court’s dismissal for lack of jurisdiction of his 28 U.S.C. § 2254. habeas petition based on it being a successive application barred by earlier sanction orders in other proceedings. Loften asserts that he is challenging for the first time his November 2013 conviction for possession of a controlled substance with intent to deliver and his 99-year term of imprisonment.

Reasonable jurists would debate whether the district court erred in dismissing Loften’s habeas petition as successive and subject to the prior sanctions imposed against Loften in earlier proceedings challenging a different conviction or a finding of guilt in a disciplinary proceeding. Additionally, “the district court pleadings, the record, and the COA application demonstrate that reasonable jurists could debate whether the petitioner has made a valid claim of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).

Accordingly, IT IS ORDERED that Loften’s motion for a COA is GRANTED; his motion for leave to proceed in forma pauperis is GRANTED; the district court’s judgment dismissing his § 2254 habeas petition as successive and barred by sanctions is VACATED; and the matter is REMANDED for further proceedings. See *361 Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998). Loften’s motion for appointment of counsel is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). His motion for an evidentiary hearing and for the issuance of a subpoena duces tecum and subpoenas for out-of-state witnesses is DENIED without prejudice to his filing the motion in the district court.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that- this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Joseph Eric Loften, Texas prisoner # 616132, seeks a certificate of appealability (COA) to challenge the district court’s dismissal for lack of jurisdiction of his 28 U.S.C. § 2254. habeas petition based on it being a successive application barred by earlier sanction orders in other proceedings. Loften asserts that he is challenging for the first time his November 2013 conviction for possession of a controlled substance with intent to deliver and his 99-year term of imprisonment.

Reasonable jurists would debate whether the district court erred in dismissing Loften’s habeas petition as successive and subject to the prior sanctions imposed against Loften in earlier proceedings challenging a different conviction or a finding of guilt in a disciplinary proceeding. Additionally, “the district court pleadings, the record, and the COA application demonstrate that reasonable jurists could debate whether the petitioner has made a valid claim of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).

Accordingly, IT IS ORDERED that Loften’s motion for a COA is GRANTED; his motion for leave to proceed in forma pauperis is GRANTED; the district court’s judgment dismissing his § 2254 habeas petition as successive and barred by sanctions is VACATED; and the matter is REMANDED for further proceedings. See *361 Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998). Loften’s motion for appointment of counsel is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). His motion for an evidentiary hearing and for the issuance of a subpoena duces tecum and subpoenas for out-of-state witnesses is DENIED without prejudice to his filing the motion in the district court.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that- this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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676 F. App'x 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loften-v-court-of-criminal-appeals-of-texasaustin-ca5-2017.

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