Opinion
Civil Action 9:22-CV-185
11-14-2022
NATHANIEL J. WHITAKER v. DIRECTOR, TDCJ-CID
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ZACK HAWTHORN, UNITED STATES MAGISTRATE JUDGE
Petitioner Nathaniel J. Whitaker, an inmate confined at the Smith Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Petitioner challenges a judgment entered in the 258th District Court of Polk County, Texas. Petitioner was convicted of aggravated robbery in cause number 20665. On October 15, 2009, he was sentenced to twenty-five years of imprisonment. This is the third federal petition that Petitioner has filed challenging the conviction. Petitioner's first petition was denied on February 4, 2016. Whitaker v. Director, No. 9:13-CV-26 (E.D. Tex. Feb. 4, 2016). The second federal petition was dismissed as barred by the statute of limitations. Whitaker v. Director, No. 9:16-CV-194 (E.D. Tex. Aug. 2, 2017).
Title 28 U.S.C. § 2244(b) requires individuals who wish to file a second or successive habeas corpus petition under § 2254 to obtain authorization from the appropriate appellate court before filing a petition. 28 U.S.C. § 2244(b)(3). There is no question that this is a successive petition. However, Petitioner failed to provide this court with an order from the Fifth Circuit authorizing consideration of a successive petition. As a result, the petition should be dismissed without prejudice to Petitioner's ability to re-file it if he obtains the necessary order from the Fifth Circuit.
Recommendation
This petition for writ of habeas corpus should be dismissed without prejudice as a successive petition, filed without authorization from the United States Court of Appeals for the Fifth Circuit.
Objections
Within fourteen days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.
SIGNED this 14th day of November, 2022.