IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GEORGE WILLIAM MONTGOMERY III §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1702-K

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner George William Montgomery III, appearing pro se, has filed an application for

writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application

should be unfiled. 

I.

Petitioner pled guilty to robbery and was sentenced to seven years confinement. No appeal

was taken. Instead, petitioner sought post-conviction relief in state and federal court. Both writs

were denied on the merits. Ex parte Montgomery, No. 43,447-01 (Tex. Crim. App. Nov. 17, 1999);

Montgomery v. Johnson, No. 3-00-CV-1186-P (N.D. Tex. Nov. 22, 2000). Five subsequent federal

writs were dismissed as successive. Montgomery v. Johnson, No. 3-01-CV-0390-D (N.D. Tex. Apr.

24, 2001), COA denied, No. 01-10686 (5th Cir. Aug. 21, 2001); Montgomery v. Johnson, No. 3-01-

CV-1759-G (N.D. Tex. Dec. 12, 2001); Montgomery v. Cockrell, No. 3-02-CV-2037-G (N.D. Tex.

Apr. 11, 2003); Montgomery v. Cockrell, No. 3-02-CV-2490-P (N.D. Tex. Apr. 21, 2003), COA

denied, No. 03-10603 (5th Cir. Aug. 13, 2003); Montgomery v. Dretke, No. 3-04-CV-0412-N (N.D.

Tex. Apr. 23, 2004).

 

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This litigiousness has prompted one judge in this district to bar petitioner "from filing any

further federal habeas actions challenging his 1999 robbery conviction, except upon a showing that

the Fifth Circuit Court of Appeals has granted leave to file a successive petition." Montgomery, No.

3-02-CV-2490-P. The Fifth Circuit also warned petitioner that he would face sanctions "if he

continues to file successive federal habeas petitions without authorization from this court, or if he

files motions for authorization that do not meet the required criteria of 28 U.S.C. § 2244(b)[.]"

Montgomery v. Cockrell, No. 03-10603, op. at 2 (5th Cir. Aug. 13, 2003).

Undeterred, petitioner has filed another federal writ challenging his 1999 robbery conviction.

There is no indication that the Fifth Circuit has granted leave to file this successive habeas petition.

Therefore, the writ should be unfiled.

RECOMMENDATION

The district clerk should be ordered to unfile petitioner's application for writ of habeas

corpus.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: August 25, 2005.

 

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