Opinion
Civil Action No. 3:05-CV-0569-L.
May 11, 2005
ORDER
This is a habeas case brought under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the United States magistrate judge for proposed findings and recommendation. On April 11, 2005, the Findings, Conclusions, and Recommendation of the United States Magistrate Judge ("Report") were filed, to which Petitioner filed no objections.
Petitioner seeks to challenge his convictions for unlawful possession of a firearm by a felon and felony driving while intoxicated. He claims he received ineffective assistance of counsel, in that the defense counsel failed to object to: (1) Petitioner's consent to the intoxilizer test; and (2) Petitioner's admission of guilt on the video. Report at 2. The magistrate judge found that Petitioner's habeas action was a second or successive habeas petition. As such, the petition must be certified by a panel of the Fifth Circuit Court of Appeals, pursuant to 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), before it can be heard in the district court. The magistrate judge concluded, therefore, that the petition should be dismissed for want of jurisdiction.
After making an independent review of the pleadings, file and record in this case, and the findings, conclusions and recommendation of the magistrate judge, the court determines that the findings and conclusions of the magistrate judge are correct. They are therefore accepted as those of the court. Accordingly, Petitioner's petition for habeas corpus is hereby denied, and this action is dismissed without prejudice to Petitioner's right to file a second or successive § 2254 petition with the United States Court of Appeals for the Firth Circuit pursuant to 28 U.S.C. § 2244(b)(3).