Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL WHALEY, 645333, )

Petitioner, )

)

v. ) No. 3:05-CV-2538-M

)

DOUGLAS DRETKE, Director, Texas Dept. )

Of Criminal Justice, Correctional )

Institutions Division, )

Respondent. )

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 findings, conclusions and

recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for writ of habeas corpus 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 is in the custody of TDCJ-CID pursuant to four

convictions from the 282nd Judicial District Court, Dallas County, Texas. On December 9, 1993,

 

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the Eleventh District Court affirmed the convictions. Whaley v. State, Nos. 11-93-127-CR, 11-

93-128-CR, 11-93-129-CR and 11-93-130-CR (Tex. App. – Eastland, Dec. 9, 1993, no pet.). 

On April 14, 1997, Petitioner filed a state application for writ of habeas corpus. Ex parte

Whaley, No. 34,395-01. On July 27, 1997, the Court of Criminal Appeals denied the petition

without written order on the findings of the trial court. Id. at cover. 

On November 10, 1997, Petitioner filed a federal petition for writ of habeas corpus

challenging his four convictions. Whaley v. Johnson, No. 3:97-CV-2760-D (N.D. Tex. Nov. 10,

1997). On October 27, 1999, the Court dismissed the petition as barred by the statute of

limitations.

On December 14, 2005, Petitioner filed the instant petition. He argues that he received

ineffective assistance of counsel, the indictments were defective, and the prosecutors committed

misconduct. 

The Court finds the petition is second or successive and should be transferred to the Fifth

Circuit Court of Appeals.

Discussion: Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub.L. 104-132, 110 Stat. 1217, there are limited circumstances under which a state

prisoner may file a second or successive application for habeas relief in federal court. An

application is second or successive when it: “(1) raises a claim challenging the petitioner’s

conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise

constitutes an abuse of the writ.” United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.

2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)).

 

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Petitioner previously raised the claim that he received ineffective assistance of counsel. 

He also could have raised his remaining claims in first federal petition. The petition is therefore

successive within the meaning of 28 U.S.C. § 2244(b). 

When a petition is second or successive, the petitioner must seek an order from the Fifth

Circuit authorizing this Court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). The Fifth

Circuit may authorize the filing of a second or successive application only if it determines that

the application makes a prima facie showing that the application satisfies the requirements of

2244(b). 28 U.S.C. § 2244(b)(3)(C). To present a claim in a second or successive application,

the petitioner must show the 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 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. 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. 28 U.S.C. § 2244(b)(3)(A) and (B).

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:

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

 

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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 3rd day of March, 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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