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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

STEVIE ANDRE ROBERSON §

v. § CIVIL ACTION NO. 6:23cv235

DIRECTOR, TDCJ-CID §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Petitioner Stevie Andre Roberson, proceeding pro se, filed this application for the writ 

of habeas corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. The petition 

has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C.

§636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of 

Duties to United States Magistrate Judges.

I. Background

Petitioner states that on August 1, 2013, he received a 25 year sentence in the 114th Judicial 

District Court of Smith County, Texas, for failure to register as a sex offender. He waived his right 

to direct appeal, but sought habeas corpus relief in state court. This petition was denied on June 24, 

2015.

On February 23, 2016, Petitioner states that he sought federal habeas corpus relief. The 

petition was dismissed as barred by the statute of limitations, and his appeal was dismissed through 

denial of a certificate of appealability. He sought certiorari from the U.S. Supreme Court, but this 

also was denied. In 2021, Petitioner filed a rule 60(b) motion for relief from judgment, which was 

denied, and he was again denied a certificate of appealability from the Fifth Circuit.

In the present habeas petition, Petitioner assertsthat: (1) the sex offender registration statute 

denies equal protection because it only applies to a reportable conviction after September 1, 1970,

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and exempts convictions prior to that date; (2) the sex offender statute as applied to him violates he 

Ex Post Facto Clause; and (3) the state district court lacked subject matter jurisdiction to convict 

him. For relief, Petitioner asks for a declaratory judgment, that his conviction be vacated, and that 

he be released from confinement.

As Petitioner acknowledges, this is the second habeas petition which Petitioner has filed 

concerning this same conviction. In Roberson v. Director, TDCJ-CID, civil action no.6:16cv104, 

Petitioner challenged his failure to register as a sex offender conviction from August 1, 2013, in the 

114th Judicial District Court of Smith County, Texas. He asserted that the conviction was unlawful 

because: his rape conviction was discharged in 1986, before the registration statute was enacted; 

requiring him to register as a sex offender violates the Ex Post Facto Clause and amounts to double 

jeopardy; requiring him to register is cruel and unusual punishment; and he received ineffective 

assistance of counsel. The petition was dismissed on June 13, 2017, as barred by the statute of 

limitations. Petitioner appealed this dismissal and on April 10, 2018, the Fifth Circuit denied a 

certificate of appealability and leave to proceed in forma pauperis on appeal. Roberson v. Davis, 

slip op. no. 17-40681 (5th Cir., April 10, 2018).

On December 27, 2021, some three and a half years later, Petitioner filed a motion for relief 

from judgment under Fed. R. Civ. P. 60(b). This motion was denied on March 3, 2022, and 

Petitioner appealed this denial. On August 4, 2022, the Fifth Circuit denied a certificate of 

appealability from the Rule 60 (b) motion. Roberson v. Lumpkin, slip op. no. 22-40147 (5th Cir., 

August 4, 2022).

28 U.S.C. §2244(b)(3) provides that before 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.

The on-line records of the Fifth Circuit Court of Appeals show that Petitioner has 

unsuccessfully sought permission to file a successive petition on three separate occasions. In the 

first of these, In re Roberson, slip op. no. 19-40204 (5th Cir., April 24, 2019), permission to filea

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successive petition was denied. In the second, slip op. no. 22-40170, Petitioner moved to close the 

case because he had a pending appeal, and it was closed on April 12, 2022. In the third, slip op. no. 

22-40294, Petitioner was ordered to furnish a copy of the proposed petition he intended to file in the 

district court, and when he did not comply, the case was dismissed on July 7, 2022.

Until Petitioner receives permission from the Fifth Circuit Court of Appeals to file a 

successive petition, as set out in 28 U.S.C. §2244(b)(3), the district court lacks jurisdiction to 

consider his claims in a new habeas petition. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). 

Petitioner’s present habeas petition should be dismissed until such time asleave to file a successive 

petition is granted by the Fifth Circuit.

Certificate of Appealability

An appeal may not be taken to the court of appeals from a final order in a habeas corpus 

proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§2253(c)(1)(A). A district court may deny a certificate of appealability sua sponte because the 

district court that denies a petitioner relief is in the best position to determine whether the petitioner 

has made a substantial showing of a denial of a constitutional right on the issues before that court. 

Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

A certificate of appealability may only issue if the prisoner has made a substantial showing 

of the denial of a constitutional right. 28 U.S.C. §2253(c)(2); Buntion v. Lumpkin, 982 F.3d 945, 

948 (5th Cir. 2020). In order to make that showing, the petitioner must demonstrate that jurists of 

reason could disagree with the district court’s resolution of his constitutional claims or thatjurists 

could conclude that the issues presented are adequate to deserve encouragement to proceed further. 

Buck v. Davis, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017). The Fifth Circuit’s review is not a full 

consideration of the factual or legal bases adduced in support of the petitioner’s claims, butrather 

an examination of whether the district court’s decision was debatable. Buntion, 982 F.3d at 948, 

citing United States v. Davis, 971 F.3d 524, 530 (5th Cir. 2020).

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When a certificate of appealability is denied because of a procedural default in statecourt, 

the applicant must further demonstrate that reasonable jurists could disagree with the procedural 

ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Petitioner has not shown, nor does the record indicate, that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling that the Court lacks 

jurisdiction because he has not obtained leave from the Fifth Circuit to file a successive petition. 

Consequently, he is not entitled to a certificate of appealability.

RECOMMENDATION

Itis accordingly recommended that the above-styled application forthe writ of habeas corpus 

be dismissed with prejudice as to its refiling without permission from the Fifth Circuit, but without 

prejudice as to its refiling once such permission has been obtained. 28 U.S.C. §2244(b)(3). 

Petitioner may not refile this petition without first obtaining such leave, and the dismissal of this 

petition shall have no effect upon his right to seek permission from the Fifth Circuit to file a second 

orsuccessive petition or to pursue such a petition in the event that permission is granted. It isfurther 

recommended that a certificate of appealability be denied sua sponte, with such denial referring 

solely to an appeal of the decision in this case and likewise having no effect upon Petitioner’s right 

to seek permission from the Fifth Circuit to file a successive petition.

A copy of these findings, conclusions and recommendations shall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or

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general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

So ORDERED and SIGNED this 17th day of May, 2023.

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