Opinion
Civil Action No. 4:02-CV-564-A
July 8, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the 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 Recommendations of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner, Eligah Darnell, Jr., TDCJ-ID #509489, is currently incarcerated in the Huntsville Unit of the Texas Department of Criminal Justice, Institutional Division, in Huntsville, Texas.
Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Pursuant to a plea of guilty entered on March 29, 1989, Darnell was convicted in state court of indecency with a child by contact and sentenced to nine years' confinement (Cause No. 0364461W). (Pet. at 2.) Darnell sought post-conviction relief challenging his conviction, including a previous federal petition for writ of habeas corpus.
Apparently, Darnell is also in custody pursuant to two unrelated state convictions for burglary of a habitation and unlawful possession of a firearm (Cause Nos. 0340533D 0333956W).
The instant petition is Darnell's eighth petition for writ of habeas corpus filed in federal court pursuant to 28 U.S.C. § 2254. In the first petition filed on December 2, 1999, Civil Action No. 4:99-CV-0993-A, Darnell challenged on substantive grounds the same conviction for indecency with a child that he challenges herein. The previous petition was dismissed with prejudice as time-barred on August 14, 2000, and Darnell was denied relief on appeal. See Darnell v. Johnson, No. 00-10968 (5th Cir. Dec. 5, 2000). In the second petition filed on December 20, 1999, Civil Action No. 4:99-CV-1048-A, Darnell challenged the revocation of his mandatory supervision release, and the petition was dismissed without prejudice for failure to exhaust state court remedies on May 16, 2000. While his first petition remained pending, Darnell filed his third petition on June 14, 2000, Civil Action No. 4:00-CV-504-A, claiming that he was improperly denied credits against his sentence for various periods of time spent in jail and an intermediate sanction facility while awaiting revocation proceedings. The petition was dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d)(1). Darnell v. Johnson, No. 4:00-CV-504-A (N.D. Tex. Feb. 20, 2001). Darnell's appeal was dismissed for want of prosecution on June 15, 2001. Darnell v. Johnson, No. 01-10388 (5th Cir. June 15, 2001). Darnell filed a fourth petition on August 16, 2000, Civil Action No. 4:00-CV-1486-Y, challenging on substantive grounds his conviction for burglary of a habitation. On September 29, 2000, the petition was summarily dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d)(1). The Fifth Circuit denied Darnell's request for a certificate of appealability. Darnell v. Johnson, No. 00-11162 (5th Cir. Feb. 14, 2001). Darnell filed his fifth petition on October 18, 2000, Civil Action No. 4:00-CV-1706-A, challenging on substantive grounds his conviction for unlawful possession of a firearm. The petition was denied on September 17, 2001, and the Fifth Circuit denied Darnell's request for a certificate of appealability. Darnell v. Cockrell, No. 01-11292 (5th Cir. Dec. 18, 2001). On December 4, 2000, Darnell filed his sixth petition, Civil Action No. 4:00-CV-1829-A, challenging his parole revocation of November 18, 1999. The petition was dismissed as moot on September 4, 2001, and his request for a certificate of appealability was denied by the Fifth Circuit. Darnell v. Cockrell, No. 01-11284 (5th Cir. Jan. 2, 2002). In Darnell's seventh petition, filed on April 17, 2002, in Civil Action No. 4:02-CV-366-A, he appears to challenge a parole revocation on December 20, 2001. That proceeding remains pending.
D. SUCCESSIVE PETITION
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) requires dismissal of a second or successive petition filed by a state prisoner under § 2254 unless specified conditions are met. 28 U.S.C. § 2244(b)(1)-(2). Further, before such a petition is filed in federal district court, the petitioner must move for authorization to file the petition in the appropriate court of appeals. Id. § 2244(b)(3).
From the face of the instant petition and court records of which this Court can take judicial notice, it is apparent that this is a successive petition filed without authorization from the Fifth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(1)-(3). This Court is, therefore, without jurisdiction to consider the petition. Id.; United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
RECOMMENDATION
It is recommended that Darnell's petition be dismissed pursuant to 28 U.S.C. § 2244(b)(1).
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until July 29, 2002. Pursuant to Federal Rule of Civil Procedure 72(b) and Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected — to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until July 29, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendations, be and hereby is returned to the docket of the United States District Judge.