Opinion
NO. 4:04-CV-458-A.
August 18, 2004
ORDER
Came on for consideration the above-captioned action wherein Rafael Alvaro Prieto is petitioner and Douglas Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On July 15, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by August 5, 2004. On July 26, 2004, the court granted petitioner's motion for extension of time to file objections, and his objections were filed on August 13, 2004. Respondent has not made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
The magistrate judge concluded that the petition should be dismissed as a successive petition filed without authorization from the United States Court of Appeals for the Fifth Circuit.See 28 U.S.C. § 2244(b)(1). Petitioner seems to argue that his claim of "newly discovered evidence" allows this court to consider his successive petition. Pet.'s Obj. at 5. Such objection is without merit. Accordingly,
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, dismissed pursuant to 28 U.S.C. § 2244(b)(1).