Opinion
Civil No. 7:12-CV-106-O-BL
08-03-2012
CHARLES ALPINE, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
REPORT AND RECOMMENDATION
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice ("TDCJ") in Iowa Park, Texas. Alpine seeks to challenge the validity of his 2007 Harris County conviction for the offense of aggravated assault with a deadly weapon. See Petition p.6; Alpine v. State, No. 01-07-00177-CR, 2008 WL 2388128 (Tex. App. - Houston [1st Dist] 2008, no pet.)(copy attached hereto as Exhibit A). This is the same conviction that Alpine challenged in a previous case, Alpine v. Thaler, No. H-10-2783 (S.D. Tex. Apr. 5, 2011) (dismissed as time-barred).
The Antiterrorism and Effective Death Penalty Act of 1996 limits the circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. In general, a later petition is successive when it raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition or otherwise constitutes an abuse of the writ. Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009); Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003). The grounds for relief set forth in the instant petition were raised, or could have been raised, in Alpine's earlier petition.
When a petition is second or successive, the petitioner must seek an order from the Fifth Circuit Court of Appeals that authorizes this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Because the instant petition is successive, this Court is without authority to entertain the petition unless leave to file is granted by the Fifth Circuit. See Crone, supra.
The District Court may opt to transfer a successive habeas petition to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). However, Alpine has twice been sanctioned by the Fifth Circuit and is not permitted to file a motion for authorization to file a successive § 2254 petition until the sanctions have been satisfied. See In re Al-Pine, Nos. 11 -20865 & 12-20005 (each sanctioning Charles Alpine $100 for repeatedly filing frivolous, repetitive and abusive pleadings). Because he's been sanctioned by the Fifth Circuit, this Court should not transfer the instant case.
The Court notes that Charles Alpine hyphenates his last name in his pleadings ("Al-Pine"). The TDCJ website indicates that his last name is not hyphenated.
For the foregoing reasons, it is recommended that the instant petition be DISMISSED without prejudice as successive.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 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).
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E. SCOTT FROST
UNITED STATES MAGISTRATE JUDGE