1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

OLIVER BATTIE, JR., §

§

 Petitioner, §

§

v. § No. 3:22-cv-00624-X (BT)

§

DIRECTOR, TDCJ-CID, §

§

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Oliver Battie, Jr., a state prisoner, has filed a pro se petition for a writ 

of habeas corpus under 28 U.S.C. § 2254. For the following reasons, the 

Court should transfer Battie’s petition to the Fifth Circuit Court of Appeals 

as successive. 

I.

A jury convicted Battie of sexual assault on June 26, 2014, and the 

court sentenced him to life imprisonment. See State v. Battie, No. F12-

12860-R; see also Pet. 2 (ECF No. 3). His conviction and sentence were 

affirmed on appeal on October 13, 2015, Pet. 2, and the Texas Court of 

Criminal Appeals later denied habeas relief without a written order on the 

trial court’s findings and dismissed his successive application. Ex Parte 

Battie, No. WR-86, 351-01 (Tex. Crim. App. Feb. 15, 2017); see also Pet. 4. 

Case 3:22-cv-00624-X-BT Document 5 Filed 03/29/22 Page 1 of 5 PageID 24
2

On April 29, 2017, Battie filed his first petition for writ of habeas 

corpus in this Court. See Battie v. Davis, No. 3:17-cv-1191-D-BK, ECF No. 3. 

The United States magistrate judge recommended that the petition be 

denied. (No. 3:17-cv-1191-D-BK, ECF No. 20.) On October 3, 2018, the 

District Court adopted the magistrate judge’s findings, conclusions, and 

recommendation, denied the petition, and denied a certificate of 

appealability. (No. 3:17-cv-1191-D-BK, ECF Nos. 25, 26.) 

In the current petition, Battie argues that he is “being unlawfully 

confined in prison or restrained.” Pet. 6. Specifically, he contends: 

(1) his trial attorney provided ineffective assistance at trial 

when he: 

a. failed to properly advocate on his behalf;

b. provided erroneous advice by advising him to 

enter a straight “not guilty” plea when doing so 

prevented him from pleading “not guilty by 

reason of insanity;” 

c. advised him not to take the witness stand; and

d. failed to conduct a proper investigation. 

(2) his appellate attorney provided ineffective assistance on 

appeal when she:

a. failed to properly advocate on his behalf; and 

b. failed to consult with him before filing an Anders

brief.1

1 The purpose of filing a brief under Anders v. California, 386 U.S. 738, 744 

(1967), is two-fold: (1) it serves as proof that counsel adequately reviewed 

Case 3:22-cv-00624-X-BT Document 5 Filed 03/29/22 Page 2 of 5 PageID 25
3

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

limits the circumstances under which a state prisoner may file a second or 

successive application for habeas relief in federal court. ANTITERRORISM AND 

EFFECTIVE DEATH PENALTY ACT, Publ. L. 104-132, 110 Stat. 1214 (1996). To 

raise a claim in a second or successive § 2254 petition, a prisoner must show: 

(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 

a petitioner files a successive petition in the District Court, a three-judge 

panel of the Fifth Circuit must determine whether he makes the requisite 

prima facie showing. See 28 U.S.C. § 2244(b)(3)(A) and (B).

A petition is deemed successive when it raises a claim that was or 

could have been raised in an earlier petition, or otherwise is an abuse of writ. 

Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008). However, a 

second petition is not successive when the first petition was dismissed due 

to prematurity or for lack of exhaustion. Stewart v. Martinez-Villareal, 523 

the case, and (2) it guides the court in determining there is no need for an 

adversarial proceeding. 

Case 3:22-cv-00624-X-BT Document 5 Filed 03/29/22 Page 3 of 5 PageID 26
4

U.S. 637, 643-46 (1998). This is so because “dismissal of a first habeas 

petition for technical procedural reasons would bar the prisoner from ever 

obtaining federal habeas review.” Id. at 645. 

Battie’s claims that his trial and appellate attorneys provided 

ineffective assistance of counsel could and should have been addressed when 

he filed his first petition. Battie fails to demonstrate his claims were not 

available to him at that time. See Hardemon, 516 F.3d at 275. Rather, the 

errors Battie raises in his petition were previously known to him. After all, 

he was convicted in the trial court on June 26, 2014, and his conviction was 

affirmed on appeal on October 13, 2015. Battie’s first petition was filed on 

April 29, 2017, almost two years after his conviction was affirmed on appeal. 

In sum, Battie raises ineffective assistance of counsel claims that could 

have and should have been addressed in his initial petition. Therefore, the 

pending petition is successive. The Fifth Circuit has not issued an order 

authorizing this Court to consider Battie’s successive petition. Battie must 

obtain such an order before he may file another petition for habeas relief 

under § 2254. 

III. 

The Court should TRANSFER Battie’s petition for a writ of habeas 

corpus to the United States Court of Appeals for the Fifth Circuit pursuant 

to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). 

Case 3:22-cv-00624-X-BT Document 5 Filed 03/29/22 Page 4 of 5 PageID 27
5

SO RECOMMENDED 

Signed March 29, 2022.

______________________________

REBECCA RUTHERFORD

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).

Case 3:22-cv-00624-X-BT Document 5 Filed 03/29/22 Page 5 of 5 PageID 28