1

Because summary dismissal of this action is appropriate, an analysis of whether Dee

Anderson is the correct respondent is unnecessary.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

ELIGAH DARNELL, JR., §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-452-Y

 §

DEE ANDERSON, Sheriff, §

Tarrant County, Texas, §

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 Eligah Darnell, Jr., CID #0279245, is currently incarcerated in the Tarrant County

jail in Fort Worth, Texas.

Respondent Dee Anderson is the Sheriff of Tarrant County, Texas.1

 No service has issued

on Respondent.

 

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2

Darnell has filed numerous petitions for habeas corpus relief under 28 U.S.C. § 2254 in this

court challenging his various state convictions. See footnote 2 in the undersigned Magistrate

Judge’s findings in Darnell v. Cockrell, Civil Action No. 4:02-CV-564-A, for a more thorough

recitation of those actions. In addition to the actions noted, Darnell has filed another § 2254 petition

in Darnell v. Dretke, Civil Action No. 4:05-CV-394-Y, that remains pending at this time. 

2

C. PROCEDURAL HISTORY

In March 1989, Darnell was adjudged guilty of unlawful possession of a prohibited weapon

on the premises of a school in Criminal District Court Number 2 of Tarrant County, Texas. (Petition

at 2.) Darnell sought post-conviction relief challenging his state conviction, including a previous

federal petition for writ of habeas corpus.2 See Darnell v. Cockrell, CM/ECF, Civil Docket for Case

# 4:00-CV-1706-A.

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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From the face of the instant petition and court records of which this Court can take judicial

notice, it is apparent that this is a successive petition filed without authorization from the Fifth

Circuit Court of Appeals. 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 Darnell’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 August 4, 2005. 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

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).

 

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IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 4, 2005, 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 July 14, 2005.

 /s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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