Prieto v. Dretke

Full title: RAFAEL ALVARO PRIETO, PETITIONER, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Jul 15, 2004

Civil Action No. 4:04-CV-0458-A (N.D. Tex. Jul. 15, 2004)

Opinion

Civil Action No. 4:04-CV-0458-A.

July 15, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

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, Rafael Alvaro Prieto, TDCJ-ID #843320, is currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, in Iowa Park, Texas.

Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

C. PROCEDURAL HISTORY

In 1990, Prieto was convicted in state court of possession of a controlled substance and was sentenced to five years' confinement. (Federal Petition at 2.) Prieto sought post-conviction relief challenging his conviction, including a previous federal petition for writ of habeas corpus.¹

1 The instant petition, transferred to this court by the Dallas Division on June 22, 2004, appears to be Prieto's fourth petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 considered by this division. In two of his prior petitions, Prieto challenged on substantive grounds a 1999 conviction for aggravated sexual assault of child. See Prieto v. Dretke, Civil Action No. 4:04-CV-0100-A; Prieto v. Johnson, 4:00-CV-0104-Y. In his prior petition filed on January 26, 2001, Civil Action No. 4:01-CV-0115-E, Prieto challenged on substantive grounds the same conviction for possession of a controlled substance that he challenges herein. That petition was dismissed with prejudice on December 18, 2001 for failing to state a claim upon which relief may be granted.

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); In re Johnson, 322 F.3d 881, 882 (5^th Cir. 2003).

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 (5^th Cir. 2000).²

2 Because the Court lacks jurisdiction to consider the petition, the Court makes no ruling or recommendation regarding Prieto's status to proceed in forma pauperis.

II. RECOMMENDATION

It is recommended that Prieto'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 5, 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 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 5, 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.