Opinion
Civil Action No. 4:04-CV-0546-A.
July 28, 2004
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 Recommendation of the United States Magistrate Judge are as follows:
I. 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 David Glen Harris, TDCJ-ID #843320, is currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, in Iowa Park, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division. No process has been issued to Respondent in this case.
C. PROCEDURAL HISTORY
In 1989, Harris was convicted in state court of aggravated sexual assault with a deadly weapon and was sentenced to sixty-five years' confinement. (Petition at 2.) Harris sought post-conviction relief challenging his conviction, including two previous federal petitions for writ of habeas corpus.
This petition is Harris's third petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed in this court. In both prior petitions, Harris challenged on substantive grounds the same 1989 conviction for aggravated sexual assault with a deadly weapon that he challenges herein. See Harris v. Cockrell, Civil Action No. 4:02-CV-0315-A; Harris v. Scott, 4:95-CV-0681-A. The first petition was denied on June 28, 1996, and the second was dismissed as successive on April 22, 2002. In each instance, Harris was denied relief on appeal.
D. SUCCESSIVE PETITION
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 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).
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).
Harris contends that when he filed his first pre-AEDPA federal petition he was not given notice and was unaware of the prohibition against successive petitions, and, thus, he could not have foreseen the consequences of the district court's "recharacterization" of his first petition "into a § 2255 petition." (Pet'r Mem. at 1-7.) Otherwise, he contends he could have withdrawn the petition and filed an "all-inclusive" petition. Harris argues that the AEDPA, which became effective thereafter, effectively "trapped" him and "closed all doors" to him. Thus, he urges that his first petition "should not count as a first habeas petition sufficient to trigger AEDPA's gatekeeping requirements." In support of his argument, Harris relies heavily on Castro v. United States, 124 S. Ct. 786 (2003). In that case, the Supreme Court held that a district court cannot recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's "second or successive" restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing. Id. at 789. Where these things are not done, a recharacterized motion will not count as a § 2255 motion for purposes of applying § 2255's "second or successive" provision. Id. Nothing in the record reflects that Harris's first petition was "recharacterized" as "a § 2255 petition." Nor does this court find any support that Castro applies in the context of § 2244(b), which is relevant to § 2254 petitions.
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); In re Johnson, 322 F.3d 881, 882 (5th Cir. 2003). Because Harris has not obtained leave to file a successive petition, this court is without jurisdiction to consider the petition. Id.; United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
Because the court lacks jurisdiction to consider the petition, the court makes no ruling or recommendation regarding Harris's status to proceed in forma pauperis.
II. RECOMMENDATION
It is recommended that Harris's petition be dismissed pursuant to 28 U.S.C. § 2244(b)(1).III. 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 in the United States District Court 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 August 18, 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 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 or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 18, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. 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 recommendation, be and hereby is returned to the docket of the United States District Judge.