Johnson v. Thaler, Director TDCJ-CID, No. 3:2009cv02109 - Document 4 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE: Petitioner's application for writ of habeas corpus should be dismissed without prejudice pending review by a three-judge panel of the court of appeals. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 11/16/2009) (klm)
Download PDF
<![CDATA[
Johnson v. Thaler, Director TDCJ-CID Doc. 4 IN THE UNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION ELLOYDJOHNSON Petitioner, VS. NO.3-09-CV-2109-M RICK THALER, Director Texas Departmentof Criminal Justice, CorrectionalInstitutionsDivision Respondent. FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE corpus has a PetitionerElloyd Johnson, Texasprisoner, filed an applicationfor writ ofhabeas statedherein,the applicationshould be dismissed pursuantto 28 U.S.C. S 2254. For the reasons panel of the court of appeals. without prejudicependingreview by a three-judge I. to and In I 998, petitionerwas convictedof delivery of a controlledsubstance sentenced 99 years confinement. His conviction was affrrmed on direct appeal. Johnsonv. State,No, 05-9801387-CR, 2000 WL 257804 (Tex. App.--Dallas,Mar. 9, 2000, pet. refd). Petitioneralso to his challenged conviction on collateralreview in stateand federalcourt. With respect his federal Johnson, stateremedies,Johnsonv. writs, onewas dismissed withoutprejudicefor failureto exhaust ( o a N o . 3 - 0 0 - C V - 2 5 9 1 - G , 2 0 0W L 8 0 4 5 3 7 N . D . T e x . J u l . 1 1 , 2 0 0 1 ) , n d o n e w a s d e n i e d n t h e 1 (t{.D. Tex. Jun. 11,2002), No. merits,Johnsonv. Coclcrell, 3-01-CV-2267-M,2002WL 1298737 to COA denied,No. 02-10745(5th Cir. Oct.2,2002). Two otherfederalwrits were determined be -1- Dockets.Justia.com . to and successive were transferred the Fifth Circuit Court of Appeals Johnsonv. Dretke,No. 3-04No. (t{.D. Tex. May 31,2006);Johnsonv. CV-2602-D,2006WL1499963 Quarterman, 3-06-CV1754-L,2006 WL 3086436(N.D. Tex. Oct, 31, 2006). Both times, the Fifth Circuit denied writs, In re Johnsor, No. 06-10644(5th Cir. Aug. 8, 2006);In re authorizationto file successive (5th Cir. Feb.7, 2007). Johnson,No.No. 06-11236 relief for a fifth time. In multiple grounds, petitionernow seeksfederalhabeas Undeterred, petitioner contendsthat: (1) the judge who presidedover his casedid not take a proper oath of of office; and (2) he received ineffective assistance counsel becausehis lawyer had a speech impediment and other physical impairments. Before addressingthese claims, the court must federalwrit without prior approval from the court determinewhether petitioner can hle a successive ofappeals. il. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the relief. applicationfor federalhabeas prisoner may file a successive underwhich a state circumstances Stat.l2l4 104-132,110 l996,Pub.L. ANrrrnRRoRrsMANDEFFECTrvEDEATHPeNnlrvAcroF See applicationis basedon: (l) newly discovered (1996). A petitionermust show that the successive evidencethat, if proven and viewed in light of the evidenceas a whole, would be sufficient to factfinderwould havefoundhim guilty thatno reasonable by establish clearandconvincingevidence on to of the offense;or (2) a new rule of constitutionallaw, maderetroactive cases collateralreview Court,that waspreviouslyunavailable.28 U.S.C. 52244(b)(2).This determination by the Supreme panel of the court of appeals beforepetitioner files his application must be madeby a three-judge in federaldistrict court. fd. 5 2244. -2- this the an The Fifth Circuit hasnot issued orderauthorizine districtcourt to consider for relief. Petitioner mustobtainsuchan orderbeforethis caseis successive application habeas filed. RECOMMENDATION Petitioner'sapplication for writ of habeascorpus should be dismissedwithout prejudice panel ofthe court ofappeals. pendingreview by a three-judge A copy of this report and recommendation shall be served on all parties in the manner must hle provided by law. Any party who objectsto any part of this report and recommendation served with acopy. See28U.S.C.$ 636(bXl); within l0 daysafterbeing specificwrittenobjections FEo. R. Crv. P. 72(b). In order to be specific, an objection must identi$/ the specifrcfinding or to recommendation which objectionis made,statethe basisfor the objection,and speciff the place is judge'sreportandrecommendation wherethe disputeddetermination found. An in the magistrate objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge party from appealing will bar the aggrieved is not specific. Failureto file specificwritten objections judge that areaccepted adopted the by or of the factualfindings and legalconclusions the magistrate AutomobileAss'n, district court,exceptupongroundsof plain error. SeeDouglassv. UnitedServices 79 F.3d 1415,1417(sth Cir. 1996). DATED: November16.2009. LA\ JLJDGts I\,IAGISTRATE STATES -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
