Opinion
3:10-CV-435-L
07-20-2012
ALVIN ALEXANDER RUSSELL, 764277 Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. §636(b), implemented by an Order of the Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows: FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a state prisoner, currently incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ-CID"). Respondent Rick Thaler is Director of the TDCJ-CID.
Statement of the Case: Petitioner was convicted of sexual assault. State of Texas v. Alvin Alexander Russell, No. 26,275 (13th Jud. Dist. Ct., Navarro County, Tex., Sept. 17, 1996). He was sentenced to twenty years in prison. Petitioner did not file a direct appeal.
Petitioner filed four state habeas petitions. On June 18, 1997, the Court of Criminal Appeals denied the first petition on the findings of the trial court. The Court of Criminal Appeals dismissed the subsequent petitions as successive petitions.
On January 4, 1999, Petitioner filed a federal habeas petition. Russell v. Johnson, No. 3:99-CV-002-G (N.D. Tex.). On May 3, 1999, the Court dismissed the petition as barred by the statute of limitations.
On January 28, 2010, Petitioner filed the instant § 2254 petition. He argues the trial court orally pronounced his sentence as ten years in prison, and was without authority to correct this misstatement to a term of twenty years.
Discussion: The Antiterrorism and Effective Death Penalty Act of 1996 limits the circumstances under which a federal prisoner may file a second or successive motion for post-conviction relief. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Publ. L. 104-132, 110 Stat. 1214 (1996). A defendant must show that the successive motion is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. § 2244(b)(2). Before Petitioner files his application in this Court, a three-judge panel of the Fifth Circuit must determine whether the application makes the requisite prima facie showing. See 28 U.S.C. § 2244(b)(3)(A) and (B).
The Fifth Circuit has not issued an order authorizing this Court to consider the successive motion. Petitioner must obtain such an order before another petition for habeas relief under § 2254 is filed. RECOMMENDATION:
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).
____________________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).