     Case: 11-50417     Document: 00511636115         Page: 1     Date Filed: 10/18/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 18, 2011
                                     No. 11-50417
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHNNIE R PROPES,

                                                  Petitioner-Appellant

v.

DISTRICT ATTORNEY OFFICE, Collin County 366th Judicial; CITY OF
PLANO POLICE DEPARTMENT; OTHERS INVOLVED,

                                                  Respondents-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CV-235


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Johnnie R. Propes, Texas prisoner # 1178904, moves this court for a
certificate of appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2241
petition as an untimely 28 U.S.C. § 2254 application. Propes is serving an 18-
year sentence for murder. He argues that he is not attempting to challenge his
murder conviction, but rather is attempting to test the constitutionality of the




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-50417

State’s actions in withholding certain DNA, ballistic, and forensic evidence from
him both before trial and after his conviction.
      This court may not grant a COA unless Propes makes “a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). When a § 2254
application is dismissed on procedural grounds, “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).
      Propes’s claim that the State withheld evidence implicitly challenges the
validity of his conviction. Therefore, the district court properly construed this
action as arising under § 2254. See Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir.
1998).
      The instant § 2254 application is Propes’s third such filing. The instant
§ 2254 application alleged defects in Propes’s conviction that occurred at trial or
before he filed his first federal application in 2005; therefore, his current
application is successive. Propes v. Quarterman, 573 F.3d 225, 230 (5th Cir.
2009); see Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009); In re
Flowers, 595 F.3d 204, 205 (5th Cir. 2009). An applicant for relief under § 2254
must obtain this court’s authorization before filing a second or successive
application. 28 U.S.C. § 2244(b)(3)(A). This court did not authorize the filing of
a successive § 2254 application in this case. Because Propes’s petition was an
unauthorized successive § 2254 application, reasonable jurists would not find the
district court’s dismissal of his application debatable or wrong. See Slack, 529
U.S. at 484. Consequently, his motion for a COA is DENIED.
      Propes has previously been warned that frivolous, repetitive, or otherwise
abusive filings would invite sanctions. Propes has failed to heed this warning.
According, Propes is ORDERED to pay a sanction in the amount of $100 to the
Clerk of this Court. He is BARRED from filing any pleading in this court or in

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                                  No. 11-50417

any court subject to this court’s jurisdiction challenging his murder conviction
until the sanction has been paid in full, unless he first obtains leave of the court
in which he seeks to file such a challenge. Propes is further CAUTIONED that
future attempts to evade the requirements of § 2244 and any future frivolous,
repetitive, or otherwise abusive filings in the district court or in this court will
subject him to additional and progressively more severe sanctions.




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