IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

OLEN W. BRAMLETT(TDCJ #694397), §

Petitioner, §

VS. § CIVIL ACTION NO.4:06-CV-015-A

§

DOUGLAS DRETKE, Director, §

T.D.C.J., Correctional §

Institutions Div., §

Respondent. § 

 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE 

 UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER 

 (With special instruction to the clerk of Court)

This cause of action was referred to United States Magistrate

Judge pursuant to the provisions of 28 U.S.C. § 636(b), as

implemented by an order of the United States District Court for the

Northern District of Texas. The findings, conclusions and

recommendation of the United States Magistrate Judge are as

follows:

FINDINGS AND CONCLUSIONS:

A. NATURE OF THE CASE

 This is a petition for habeas corpus relief brought pursuant

to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Olen W. Bramlett, Texas Department of Criminal

Justice (TDCJ) No. 694397, is currently confined in the Terrell

Unit in Rosharon, Texas. The director of the TDCJ Correctional

Institutions Division is the proper Respondent. No process has been

issued to Respondent in this case.

 

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Section 2243, governing applications for writ of habeas corpus,

provides:

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to

show cause why the writ should not be granted, unless

it appears from the application that the applicant or

person is not entitled thereto.

28 U.S.C. § 2243(emphasis added). Rule 4 of the Rules Governing

Section 2254 Cases provides:

The clerk must promptly forward the petition to a

judge under the court’s assignment procedure, and the

judge must promptly examine it. If it plainly appears

from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district

court, the judge must dismiss the petition and direct

the clerk to notify the petitioner.

RULES GOVERNING SECTION 2254 CASES, RULE 4(emphasis added). 

2

C. LEGAL ANALYSIS

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts and 28 U.S.C. § 2243 both authorize a habeas

corpus petition to be summarily dismissed.1

 The Court of Appeals

for the Fifth Circuit recognized the district courts authority

under Rule 4 to examine and dismiss frivolous habeas petitions

prior to any answer or other pleading by the state. Kiser v.

Johnson, 163 F.3d 326, 328 (5th Cir. 1999). From the face of the

petition, and from court records of which this Court can take

judicial notice, it appears that this is a successive petition

filed without the permission of the United States Court of Appeals

for the Fifth Circuit as required by 28 U.S.C. §2244(b)(1) and (2).

Petitioner Bramlett challenges his August 4, 1994 conviction

for murder in case number 0475000D in the Criminal District Court

 

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The Court takes judicial notice of the records of Bramlett’s prior

habeas corpus petitions from this the Fort Worth division of the Northern

District of Texas. 

3

See 28 U.S.C.A. § 2244(b)(3)(A)(West Supp. 2005). 

4

See 28 U.S.C.A. § 2244(b)(2)(West Supp. 2005). 

3

Number One of Tarrant County, Texas. (Pet. ¶¶ 1-4.) Bramlett fails

to acknowledge that he previously brought other challenges to this

same conviction in two petitions for writ of habeas corpus in this

division, Bramlett v. State of Texas, No. 4:96-CV-924-Y and

Bramlett v. State of Texas, No.4:97-CV-021-Y. (Pet. ¶ 21.) The

cases were consolidated into case number 4:96-CV-924-Y by order of

March 18, 1997, and the consolidated petition was denied in an

order and judgment filed July 23, 1997. Although Bramlett filed a

notice of appeal, the Court of Appeals for the Fifth Circuit denied

his request for a certificate of appealability in an order filed on

the docket of case number 4:96-CV-924-Y on January 15, 1998.2

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA”) provides that a successive petition filed by a person

attacking a state-court conviction under § 2254 must be certified

by a panel of the appropriate court of appeals.3 These provisions

require dismissal of a second or successive habeas proceeding

unless specified conditions are met.4 The Supreme Court observed

that this law "simply transfers from the district court to the

court of appeals a screening function which would previously have

 

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Felker v. Turpin, 518 U.S. 651, 664 (1996). 

4

been performed by the district court as required by . . . Rule

9(b)."5 Since Olen Bramlett’s present petition was filed after the

effective date of the AEDPA, this Court is without jurisdiction to

consider the petition unless leave to file the same is granted by

the court of appeals. Petitioner Bramlett has not obtained an order

from the court of appeals authorizing the district court to review

a successive petition for habeas-corpus relief. As a result, it

appears that Bramlett’s petition under 28 U.S.C. § 2254 should be

dismissed without prejudice to his right to file a motion in the

United States Court of Appeals for the Fifth Circuit for leave to

file a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).

RECOMMENDATION

It is therefore RECOMMENDED that Olen W. Bramlett’s Petition

For Writ of Habeas Corpus under 28 U.S.C. § 2254 be DISMISSED

WITHOUT PREJUDICE to his right to file a motion in the United

States Court of Appeals for the Fifth Circuit for leave to file a

successive petition.

 NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the

right to serve and file written objections to the United States

Magistrate Judge’s proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a

 

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copy of this document. The court is extending the deadline within

which to file specific written objections to the United States

Magistrate Judge’s proposed findings, conclusions and recommendation until March 1, 2006. The United States District Judge need

only make a de novo determination of those portions of the United

States Magistrate Judge’s proposed findings, conclusions, and

recommendation to which specific written objection is timely made.

See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above

a specific written objection to a proposed factual finding or legal

conclusion will bar a party, except upon grounds of plain error or

manifest injustice, from attacking on appeal any such proposed

factual finding and legal conclusion if it has been accepted by the

United States District Judge. See Douglass v. United Services Auto

Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)(en banc); Carter v.

Collins, 918 F. 2d 1198, 1203 (5th Cir. 1990).

ORDER

Under 28 U.S.C. § 636, it is ORDERED that Petitioner is

granted until March 1, 2006 to serve and file written objections to

the United States Magistrate Judge’s proposed findings, conclusions

and recommendation. 

It is further ORDERED that the above-styled and numbered

action, previously referred to the United States Magistrate Judge

for findings, conclusions and recommendation, be and is hereby,

returned to the docket of the United States District Judge.

SIGNED February 8, 2006. /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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