Opinion
Civil Action No. 4:04-CV-0272-Y.
July 22, 2004
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 Edward Webb, TDCJ-ID # 241458, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is incarcerated in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1974, Webb was convicted by a jury of aggravated robbery in Criminal District Court No. One of Tarrant County, Texas, and sentenced to life imprisonment. (4State Habeas R. at 26.) His conviction and sentence were affirmed on direct appeal. Webb v. Texas, No. 50,423 (Tex.Crim.App. Sept. 17, 1975). He did not seek writ of certiorari. (Petition at 3.)Webb has filed two state applications for writ of habeas corpus challenging his conviction and sentence in recent years. The first was denied by the Texas Court of Criminal Appeals without written order on April 25, 2001, and the second was dismissed as successive on January 14, 2004. Ex parte Webb, Application Nos. 1,482-04 1,482-05; TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2004). Webb has also filed previous federal petitions for writ of habeas corpus pursuant to § 2254 in this court, the most current of which was dismissed with prejudice on limitations grounds on October 2, 2001. Webb v. Cockrell, No. 4:01-CV-0710-Y. This petition for writ of habeas corpus was filed in the Houston Division on January 24, 2004, and subsequently transferred to the Fort Worth Division by order dated April 6, 2004. Dretke has filed an answer with supporting brief and documentary exhibits raising only a limitations defense. Webb has filed a reply.
From the state court papers, it appears Webb also pursued state postconviction habeas relief in 1976 and 1977 to no avail.
The court takes judicial notice of its own records in Webb's previous habeas corpus actions. For a more thorough recitation regarding the previous actions, see the district court's "Order To Proceed In Forma Pauperis And Order of Summary Dismissal" in Webb v. Cockrell, Civil Action No. 4:01-CV-0710-Y.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
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). A petition is successive when, as here, it raises a claim or claims challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ. See In re Cain, 13 F.3d 234, 235 (5th Cir. 1998). The fact that the earlier petition was dismissed with prejudice on limitations grounds does not remove the subsequent petition from the second-successive requirements of § 2244(b). See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); Anders v. Dretke, No. 03:02-CV-2513-N, 2003 WL 102615, at *2 (N.D. Tex. Jan. 8, 2003) (not designated for publication); Somerville v. Dretke, No. 3:02-CV-0380-L, 2002 WL 31441226, at *2 (N.D. Tex. Oct. 29, 2002) (not designated for publication). Thus, 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 this petition and court records of which this court takes 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.; Hooker, 187 F.3d at 681-82.
Because the court lacks jurisdiction to consider the petition, the limitations issue is not considered herein.
II. RECOMMENDATION
Webb's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 should be dismissed without prejudice to his 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 August 12, 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 12, 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.