Opinion
Civil Action No. 4:02-CV-315-A
April 3, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, 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 by a prisoner presently confined in the Texas Department of Criminal Justice-Institutional Division.
B. PARTIES
Petitioner David Glen Harris, TDCJ-ID No. 519267 is currently confined in the Darrington Unit of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) in Rosharon, Texas. Petitioner named TDCJ-ID Director Janie Cockrell as 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 Court of Appeals 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 Harris challenges his June 1989 conviction and sentence for the offense of aggravated sexual assault with a deadly weapon in cause number 0336618 in the Criminal District Court Number One of Tarrant County, Texas. (Pet. ¶¶ 1-4.) Harris acknowledges that he has previously challenged this same conviction in a petition for writ of habeas corpus in this division, a case styled and numbered Harris v. Scott, cause number 4:95-CV-681-A. That petition under 28 U.S.C. § 2254 was denied in a judgment entered on July 2, 1996, the Court of Appeals denied his request for certificate of appealability in 1997, and the Supreme Court denied a petition for writ of certiorari in 1998. Harris's motion to authorize a successive habeas corpus was denied by the court of appeals in an order entered on the docket of case number 4:95-CV-681-A on March 1, 1999.
The court takes judicial notice of the docket sheet records of David Glen Harris v. Wayne Scott, 4:95-CV-681-A in this the Fort Worth division of the Northern District of Texas.
The Antiterrorism and Effective Death Penalty Act of 1996 made substantial changes in the way that habeas corpus petitions are handled by federal courts. Section 106(b) of the Act provides that a second or successive petition filed by a person attacking a sentence under § 2254 must be authorized by a three judge panel of the appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A) and (B). The provisions of Section 106 of the Act require dismissal of a second or successive habeas corpus proceeding unless specified conditions are met. See 28 U.S.C. § 2244(b)(2) and (b)(3). As the Supreme Court observed in Felker v. Turpin, section 106(b) "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)." Felker v. Turpin, 518 U.S. 651, 664 (1996). Since Harris's present petition was filed after the effective date of the Act, supra, this Court is without jurisdiction to consider the petition unless leave to file the same is granted by the Fifth Circuit. Petitioner Harris has not obtained an order from the Fifth Circuit authorizing the district court to review his successive petition for habeas corpus relief. As a result, it appears that Harris'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).
RECOMMENDATION
It is therefore RECOMMENDED that David Glen Harris's March 27, 2002 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) 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 April 24, 2002. Pursuant to 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
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until April 24, 2002 to serve and file with the court, 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 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.