IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN THOMAS BAGLEY §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1433-B

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner John Thomas Bagley, appearing pro se, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be

dismissed without prejudice pending review by a three-judge panel of the court of appeals.

I.

Petitioner was convicted of delivery of a controlled substance and sentenced to 23 years

confinement. His conviction and sentence were affirmed on direct appeal and state collateral

review. Bagley v. State, No. 05-93-01539-CR (Tex. App.--Dallas, Dec. 22, 1994, pet. ref'd); Ex

parte Bagley, No. 29,392-01 (Tex. Crim. App. Oct. 4, 1995); Ex parte Bagley, No. 29,392-02 (Tex.

Crim. App. Feb. 7, 1996). Petitioner also filed multiple applications for federal habeas relief. His

first application was dismissed on limitations grounds. Bagley v. Johnson, No. 3-98-CV-0663-P

(N.D. Tex. Sept. 8, 1998), COA denied, No. 98-11145 (5th Cir. Mar. 15, 1999). Three other federal

writs were dismissed as successive. Bagley v. Johnson, No. 3-99-CV-2357-G (N.D. Tex. Feb. 23,

2000); Bagley v. Dretke, No. 3-03-CV-1923-K (N.D. Tex. Oct. 14, 2003); Bagley v. Dretke, No. 3-

03-CV-1731-D (N.D. Tex. Dec. 31, 2003), COA denied, No. 04-10228 (5th Cir. Oct. 21, 2004). 

 

 Case 3:05-cv-01433-B Document 8 Filed 08/31/05 Page 1 of 3 PageID 37
Undeterred, petitioner now seeks federal habeas relief for a fifth time. Before addressing his

claims, the court must determine whether petitioner can file a successive habeas petition without

prior approval from the court of appeals.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the

circumstances under which a state prisoner may file a successive application for federal habeas

relief. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214

(1996). A petitioner must show that the successive application 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 factfinder 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, that was previously unavailable. 28 U.S.C. § 2244(b)(2). This

determination must be made by a three-judge panel of the court of appeals before petitioner files his

application in district court. Id. § 2244.

The Fifth Circuit has not issued an order authorizing the district court to consider this

successive application for habeas relief. Petitioner must obtain such an order before this case is

filed. 

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be dismissed without prejudice

pending review by a three-judge panel of the court of appeals. 

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

 

 Case 3:05-cv-01433-B Document 8 Filed 08/31/05 Page 2 of 3 PageID 38
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).

DATED: August 31, 2005.

 

 Case 3:05-cv-01433-B Document 8 Filed 08/31/05 Page 3 of 3 PageID 39