Opinion
No. 2:02-CV-0271
November 1, 2002
REPORT AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION
Petitioner ELARGE ELLISON, JR. has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody wherein he appears to seek early release to parole or monetary compensation for "work time." Petitioner is currently confined in TDCJ-ID on two(2) 15-year sentences assessed pursuant to petitioner's November 12, 1992 convictions for second degree robbery and theft out of the 264th Judicial District Court of Bell County, Texas. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends petitioner's application be DISMISSED.
Petitioner has filed two previous federal habeas petitions. On August 25, 2000, petitioner initiated a federal habeas proceeding in the United States District Court for the Western District of Texas, Waco Division. Ellison v. Johnson, No. 6:00-CV-227. On December 13, 2000, petitioner's federal habeas application was dismissed as time barred. On November 22, 2000, petitioner initiated a second federal habeas proceeding in this Court. Ellison v. Johnson, No. 2:00-CV-382. On June 21, 2002, this Court denied petitioner's federal habeas application on the merits.
In the instant writ application, petitioner wholly failed to advise the Court of these prior filings. Moreover, petitioner does not address, in the instant federal habeas application, his failure to obtain permission from the Court of Appeals to institute the instant habeas action.
This Court does not have jurisdiction to entertain petitioner's habeas petition unless, and until, he receives permission from the Fifth Circuit Court of Appeals to proceed on a successive petition. Therefore, the issue of whether the instant case constitutes an exception to the statute which would allow petitioner to proceed with a successive petition, and the issue of whether petitioner's failure to disclose his prior habeas filings warrant imposition of sanctions, are issues which are not ripe for adjudication by this Court at the present time.
Petitioner has wholly failed to comply with 28 U.S.C. § 2244 (3)(A). Such paragraph provides that before any second or successive application permitted by this section is filed in the District Court, the applicant shall move in the appropriate Court of Appeals for an order authorizing the District Court to consider the application.
Therefore, under the mandatory language of section 2244(b)(3)(A), the present application should be dismissed without prejudice to petitioner refiling after obtaining leave from the Fifth Circuit Court of Appeals.
RECOMMENDATION
It is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the application writ of habeas corpus filed by petitioner ELARGE ELLISON, JR. be DISMISSED. Such dismissal should be without prejudice to petitioner re-filing the petition for writ of habeas corpus upon having met the requirements of 28 U.S.C. § 2244.
INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO APPEAL
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card. Any party may object to the proposed findings, conclusions, or recommendation within fourteen (14) days of the date of its filing. 28 U.S.C. § 636 (b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting pates shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the District Court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).