Opinion
No. 3:04-CV-0772-N.
April 20, 2004.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Statement of the Case : On May 17, 2001, petitioner was convicted of aggravated robbery in Cause No. F00-39955. (Pet. Writ of Habeas Corpus (Pet.) at 2.) On April 13, this Court received the instant federal petition for writ of habeas corpus. (Pet. at 1.) On April 8, 2004, the Court received a nearly identical federal petition that challenges the same state conviction and raises the same claims. See Cunningham v. Dretke, No. 3:04-0737-G (N.D. Tex.) (Pet. received Apr. 8, 2004). Although there are minor differences in the two petitions, the petitions do not differ in any material respect. The basis of the two petitions are the same in that they both challenge petitioner's aggravated robbery conviction. The prior petition remains pending before the Court.
In view of the nearly identical nature between the instant habeas application and the prior habeas application, the District Court should direct the Clerk of the Court to administratively close this action (No. 3:04-CV-0772-N), and to file the petition docketed in this action in petitioner's earlier action (No. 3:04-CV-0737-G).
II. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court direct the Clerk of the Court to administratively close this action (No. 3:04-CV-0772-N) and to file the petition docketed in this action in petitioner's earlier action (No. 3:04-CV-0737-G) as a supplemental petition. If petitioner indeed intended to open two separate cases that challenge the same state conviction, he has the right to object to this recommendation as provided in the notice of rights to appeal/object.