Opinion
Civil Action No. 4:06-CV-0236-Y.
April 11, 2006
FINDINGS, CONCLUSIONS, AND RECOMMENDATION 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 under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Bruce Albert Kirk, TDCJ-ID #478497, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in Fort Stockton, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division. No service has issued on Respondent.
C. FACTUAL AND PROCEDURE HISTORY
On April 4, 1988, pursuant to his negotiated pleas of guilty, Kirk was convicted of two counts of indecency with a child (Cause Nos. 9870 and 9871) and two counts of sexual assault (Cause Nos. 9872 and 9873) in Parker County, Texas, and sentenced to twenty years' confinement in each case, the sentences to run concurrently. On July 21, 2005, Kirk filed this petition in the United States District Court for the Eastern District of Texas, Beaumont Division. His claims therein challenging his 1988 convictions were severed and the action was partially transferred to this court by order dated April 3, 2006. Kirk has filed two or more previous federal petitions for writ of habeas corpus in this court challenging the same convictions. Kirk v. Dretke, Civil Action No. 4:05-CV-0409-A (action dismissed as successive; remains pending on appeal); Kirk v. Johnson, Civil Action No. 4:97-CV-916-E (denied, in part, and dismissed with prejudice, in part).
The court takes judicial notice of the court documents and records filed in Kirk's prior federal habeas corpus actions.
Prior to the cases cited, Kirk filed two federal petitions that were dismissed without prejudice. Kirk v. Texas Bd. of Pardons and Parole, Civil Action No. 4:96-CV-969-Y; Kirk v. State of Texas, Civil Action No. 4:97-CV-1031. The court documents and records for those actions are not available on case management.
D. SUCCESSIVE
28 U.S.C. § 2244(b) 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 in the appropriate court of appeals for an order authorizing the district court to consider the application. Id. § 2244(b)(3).From the face of the instant petition, 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.; Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999). Kirk must first seek an order authorizing this court to consider his claims from the Fifth Circuit Court of Appeals. See In re McGinn, 213 F.3d 884, 885 (5th Cir. 2000); Rogers v. Cockrell, No. 4:02-CV-954-Y, 2003 WL 21246099, at *2 (N.D. Tex. Apr. 14, 2003).
II. RECOMMENDATION
Kirk's petition for writ of habeas corpus under 28 U.S.C. § 2254 should be dismissed without prejudice to Kirk's right to file a motion for leave to file a successive petition in the United States District Court of Appeals for the Fifth Circuit under 28 U.S.C. § 2244(b)(3)(A).
III. 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 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 May 1, 2006. 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 May 2, 2006, 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.