Opinion
CIVIL ACTION NO. 4:04-CV-657-Y.
October 1, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The findings, conclusions and recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Sergio Rivera, Sr., Texas Department of Criminal Justice (TDCJ) No. 921743, is currently confined in the Lynaugh Unit in Fort Stockton, Texas. The Director of the TDCJ Correctional Institutions Division is Respondent. No process has been issued to Respondent in this case.
C. LEGAL ANALYSIS
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. The Court of Appeals for the Fifth Circuit recognized the district courts authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). From the face of the petition, and from court records of which this Court can take judicial notice, it appears that this is a successive petition filed without the permission of the United States Court of Appeals for the Fifth Circuit as required by 28 U.S.C. § 2244(b)(1) and (2).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 Cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added).
Petitioner Rivera challenges the manner in which the Texas Department of Criminal Justice, Board of Pardons and Paroles is administering his ten year sentence imposed on April 26, 2000 upon his conviction for aggravated assault with a deadly weapon (cause number 0489215D) in the Criminal District Court Number Two of Tarrant County Texas. (Pet. ¶¶ 1-4, 20; attachments.) Rivera fails to acknowledge that he previously brought two other challenges to the same conviction in petitions for writ of habeas corpus filed under 28 U.S.C. § 2254 in this division: Rivera v. Dretke, 4:03-CV-1167-Y (Dismissed with prejudice — February 13, 2004); and Rivera v. Dretke, 4:03-CV-1364-A (Dismissed as successive-March 24, 2004). (Pet. ¶ 21.)
The Court takes judicial notice of the records from this the Fort Worth division of the Northern District of Texas. The undersigned notes that Rivera failed to acknowledge these prior federal habeas petitions in a question in the form petition in this case even though he declared "under penalty of perjury that the foregoing is true and correct. . . ." (Pet. ¶¶ 21, page 9.)
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA") provides that a second petition filed by a person attacking a state-court conviction under § 2254 must be certified by a panel of the appropriate court of appeals. These provisions require dismissal of a successive habeas proceeding unless specified conditions are met. The Supreme Court observed that this law "simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)." Since Sergio Rivera's present petition was filed after the effective date of the AEDPA, this Court is without jurisdiction to consider the petition unless leave to file the same is granted by the court of appeals. Petitioner Rivera has not obtained an order from the court of appeals authorizing the district court to review his successive petition for habeas-corpus relief. As a result, it appears that Rivera's petition under 28 U.S.C. § 2254 should be dismissed without prejudice to his right to file a motion in the United States Court of Appeals for the Fifth Circuit for leave to file a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).
See 28 U.S.C.A. § 2244(b)(3)(A) (West Supp. 2004).
See 28 U.S.C.A. § 2244(b)(2) (West Supp. 2004).
Felker v. Turpin, 518 U.S. 651, 664 (1996).
RECOMMENDATION
It is therefore RECOMMENDED that Sergio Rivera's Petition For Writ of Habeas Corpus under 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE to his right to file a motion in the United States Court of Appeals for the Fifth Circuit for leave to file a successive petition.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until October 22, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific written objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding and legal conclusion if it has been accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F. 2d 1198, 1203 (5th Cir. 1990).
ORDER
Under 28 U.S.C. § 636, it is ORDERED that Petitioner is granted until October 22, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and is hereby, returned to the docket of the United States District Judge.