IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

VINCENT L. BAKER, §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-646-Y

 §

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the 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 Recommendations of the United

States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Vincent L. Baker, CID #448156, is currently incarcerated in the Tarrant County

jail in Fort Worth, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division.

 

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1

This Court takes judicial notice, which it is entitled to do, of the court records in Civil

Action Nos. 7:05-CV-114, 6:97-CV-99, 4:97-CV-90, 6:99-CV-198, 4:99-CV-334, 4:92-CV-349,

4:94-CV-445, and 6:95-CV-446.

2

C. PROCEDURAL HISTORY

In December 1980, Baker was adjudged guilty of theft of property in Case No. 22901A in

the Criminal District Court Number Two of Tarrant County, Texas, and was placed on three years’

probation. (6State Habeas R. at 22.) On August 1, 1985, his probation was revoked, and he was

sentenced to three years’ imprisonment. (Id. at 24.) Baker’s three-year sentence has since expired.

By way of this petition, Baker collaterally attacks his 1980 conviction, used to enhance his

punishment in another criminal case, on substantive grounds. Baker has filed numerous petitions

for writ of habeas corpus in both state and federal court challenging his various state convictions.1

D. SUCCESSIVE PETITION

28 U.S.C. § 2244(b) requires dismissal of a second or successive petition filed by a state

prisoner under § 2254 that was or could have been presented in a prior petition unless–

(A) the applicant shows that the claim relies on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(I) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and 

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that, but for constitutional error,

no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(1)-(2). Further, before such a petition is filed in federal district court, the

petitioner must move for authorization to file the petition in the appropriate court of appeals. Id. §

2244(b)(3). 

 

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It appears Baker has previously sought authorization from the Fifth Circuit Court of Appeals

to file a successive habeas corpus petition on at least two occasions, to no avail. See In re Baker,

No. 01-10954 (5th Cir. Oct. 16, 2001); In re Baker, No. 99-10250 (5th Cir. Apr. 19, 1999).

3

From the face of the instant petition and court records, it is apparent that this is a successive

petition filed without authorization from the Fifth Circuit Court of Appeals.2

 See 28 U.S.C. §

2244(b)(1)-(3). This Court is, therefore, without jurisdiction to consider the petition. Id.; United

States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).

II. RECOMMENDATION

It is recommended that Baker’s petition be dismissed pursuant to 28 U.S.C. § 2244(b)(1).

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

 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 specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a 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 24, 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 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 or legal conclusion accepted by the

 

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United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 24, 2006, to

serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

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 hereby

is returned to the docket of the United States District Judge. 

SIGNED March 3, 2006.

/s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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