HAB54\R&R\WESTERBY126.SUCC&IFP:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

 

CHARLES WESTERBY, §

§

Petitioner, §

§

v. § 2:05-CV-0126

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

FOR FAILURE TO PAY FILING FEE AND

FOR LACK OF SUBJECT MATTER JURISDICTION

Petitioner CHARLES WESTERBY has filed with this Court a predominately incoherent

and unintelligible pleading which has been construed as a Petition for a Writ of Habeas Corpus

by a Person in State Custody. Petitioner did not submit his pleading on the form petition

required by the Court, nor has he tendered any payment to satisfy the requisite filing fee or

submitted an application to proceed in forma pauperis with a certified in forma pauperis data

sheet from the institution in which he is confined. For the reasons hereinafter expressed, the

undersigned United States Magistrate Judge recommends petitioner's application be

DISMISSED.

 

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Title 2244(b) does not define what constitutes a “second or successive habeas corpus application.” Even so, the

undersigned finds the instant application for habeas relief is a “second or successive habeas corpus application” within the

meaning of section 2244(b) because it, like petitioner’s first habeas application, appears to challenges petitioner’s custody

pursuant to his conviction for the offense of aggravated sexual assault of a child in Cause No. 4872-C-1 in the 251st Judicial

District Court of Randall County, Texas.

HAB54\R&R\WESTERBY126.SUCC&IFP:2 2

I.

FAILURE TO PAY FILING FEE

Petitioner did not submit with his habeas application any payment to satisfy the requisite

filing fee, nor did he submit an Application to Proceed In Forma Pauperis or a certified in forma

pauperis data sheet from the institution in which he is confined. It is petitioner’s obligation to

ensure that the filing fee is submitted to the Court or that permission to proceed in forma

pauperis is received in lieu of the filing fee. Because petitioner has failed to pay the requisite

filing fee in this case, or obtain permission to proceed without payment of the filing fee, it is the

opinion of the undersigned that petitioner’s case should be DISMISSED.

II. 

PERMISSION TO FILE APPLICATION

Petitioner has filed with this Court a prior federal application for a writ of habeas. See

Westerby v. Dretke, No. 2:02-CV-0260, filed September 12, 2002. Title 28 U.S.C. § 2244(b)(2)

permits a district court to consider a claim presented in a second or successive habeas

application1 that was not presented in a prior application if the claim (1) relies on a new rule of

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

previously unavailable; or (2) is based on a factual predicate that could not have been discovered

previously through the exercise of due diligence and which, 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 petitioner guilty of the

 

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underlying offense. In the instant case, however, it is not necessary to determine whether this

Court may consider petitioner’s claims presented in the current petition because petitioner has

failed to fulfill the preliminary procedural filing requirements pertaining to successive petitions.

Title 28 U.S.C. § 2244(b)(3)(A) provides that before a second or successive application

permitted by section 2244(b)(2) is filed in the district court, “the applicant shall move in the

appropriate court of appeals for an order authorizing the district court to consider the

application.” Section 2244(b)(3)(A), which became effective April 24, 1996, creates a

“gatekeeping” mechanism at the appellate court for the consideration of second or successive

applications in the district courts. Felker v. Turpin, 116 S.Ct. 2333, 2337 (1996). Specifically, it

“transfers from the district court to the court of appeals a screening function which would

previously have been performed by the district court.” Id., 116 S.Ct. at 2340. Permission may

be obtained only by filing, with the appropriate appellate court, a motion for authorization to file

a successive habeas petition with the district court. In re Epps, 127 F.3d 364 (5th Cir. 1997)

(detailing the procedure for obtaining authorization from the appellate court). The court of

appeals may authorize the filing of a second or successive application for habeas relief only if it

determines the application makes a prima facie showing that the application satisfies the

requirements set forth in 28 U.S.C. § 2244(b)(2).

In the instant application, petitioner has not made any showing of having obtained

authorization from the Fifth Circuit Court of Appeals, the appropriate appellate court, to file this,

his second, federal habeas corpus application. Because petitioner has failed to obtain the

appropriate appellate court permission to file a successive federal habeas petition with this Court

as required by 28 U.S.C. § 2244(b)(3)(A), this Court has no authority to consider his request for

 

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relief. Consequently, it is the undersigned’s opinion that this Court lacks subject matter

jurisdiction to consider petitioner’s application for a writ of habeas corpus and that petitioner’s

federal application for habeas corpus relief should be dismissed for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1), (h)(3) of the Federal Rules of Civil Procedure, and 28

U.S.C. § 2244(b)(3)(A).

III.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the Petition for Writ of Habeas Corpus filed by petitioner CHARLES

WESTERBY be, in all things, DISMISSED for failure to pay the $5.00 filing fee. It is the further

RECOMMENDATION of the United States Magistrate Judge to the United States District Judge

that the Petition for Writ of Habeas Corpus filed by petitioner CHARLES WESTERBY be, in all

things, DISMISSED for lack of jurisdiction.

IV.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 17th day of May 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in

this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on

appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set

forth by the Magistrate Judge in this report and accepted by the district court. See Douglass v.

United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857

F.2d 275, 276-77 (5th Cir. 1988).

 

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