Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELLOYD JOHNSON, 840854, )

Petitioner, )

)

v. ) No. 3:04-CV-2602-D

)

DOUGLAS DRETKE, Director TDCJ-CID, )

Respondent. )

AMENDED 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 amended 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 is Douglas

Dretke, Director of the TDCJ-CID. 

Statement of the Case: Petitioner was convicted of unlawful delivery of more than one

gram but less than four grams of cocaine. Punishment, enhanced by two prior convictions, was

assessed at 99 years imprisonment. His conviction and sentence were affirmed on direct appeal. 

Johnson v. State, No. 05-98-01387-CR (Tex. App. – Dallas, Mar. 9, 2000, pet. ref’d). 

Petitioner filed four state applications for writ of habeas corpus. Ex parte Johnson,

Application Nos. 5,843-02, -03, -05, –06. The Texas Court of Criminal Appeals dismissed the

 

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first writ because Petitioner’s direct appeal was still pending. The Court denied Petitioner’s

second application without written order on the findings of the trial court. Petitioner’s third and

fourth state applications were dismissed for abuse of the writ.

On November 13, 2001, Petitioner filed a federal petition for writ of habeas corpus. 

Johnson v. Cockrell, No. 3:01-CV-2267-M (N.D. Tex. Nov. 13, 2001). On June 11, 2002, the

Court denied the petition on the merits. 

On December 1, 2004, Petitioner filed the instant petition. He argues: (1) his counsel

was ineffective because counsel did not “use favorable evidence in the course of the trial,” and

counsel informed Petitioner that his first indictment had been dismissed at a re-indictment

hearing; and (2) the trial court concealed that the prosecution requested dismissal of the first

indictment and failed to admit that the first indictment was still pending.

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 postconviction 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).

 

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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).

Signed this 2nd day of May, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to

the proposed findings, conclusions and recommendation within ten days after being served with

a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of

the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. 

See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

 

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