United States District Court, E.D. Texas, Tyler Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
D. KERNODLE UNITED STATES DISTRICT JUDGE
Tony Anderson, a prisoner proceeding pro se, filed
this petition complaining of the legality of his conviction.
This case was referred to United States Magistrate Judge K.
Nicole Mitchell pursuant to 28 U.S.C. § 636. On
September 4, 2019, the Magistrate Judge issued a Report and
Recommendation (Docket No. 5), recommending that the action
be dismissed because Petitioner had not obtained leave to
file a successive habeas petition from the Fifth Circuit.
Id. at 2. Petitioner timely filed objections on
September 20, 2019. Docket No. 7.
styled his petition as a “complaint motion” and
asserted that he has been kidnapped and held against his will
by the State of Texas because he was not afforded due process
of law. Docket No. 1 at 1. Petitioner's arguments
include: (1) the charging instrument was fatally defective;
(2) there was no determination of the existence of probable
cause; (3) the court received a false document to make it
appear as though Petitioner agreed to plead guilty in
exchange for the prosecution dropping federal charges when in
fact he had never spoken to the federal prosecutor; (4)
Petitioner did not receive Miranda warnings at the open court
sentencing phase of his trial; (5) no evidence existed that
could prove Petitioner guilty beyond a reasonable doubt; and
(6) Petitioner received ineffective assistance of counsel.
Id. at 2-3.
Magistrate Judge construed Petitioner's pleading as a
petition for the writ of habeas corpus and recommended that
the petition be denied as successive. Docket No. 5 at 2.
Petitioner has previously sought habeas corpus relief on this
same conviction, and Petitioner failed to show that he
received permission from the U.S. Court of Appeals for the
Fifth Circuit to file a successive petition, as required by
28 U.S.C. § 2244(b)(3). Id. While Petitioner
did at one time seek leave from the Fifth Circuit to file a
successive petition, he later withdrew his application.
In re: Tony Anderson, slip op. no. 17-41257 (5th
Cir. Jan. 23, 2018). The Magistrate Judge determined that,
until Petitioner obtains leave to file a successive petition,
the Court lacks jurisdiction to consider his claims. Docket
No. 5 at 2.
objections, Petitioner asserts that he did not file a habeas
corpus petition, but a complaint about being kidnapped and
held unlawfully. Docket No. 7 at 1. He also states that he
made it known to the Court that there was no evidence of any
police reports, no autopsy report, no judicial confession, no
evidence of a deceased person, and no evidence that he
committed murder. Id. at 1-2. He states that he
asked for immediate release and appointment of counsel.
Id. at 2-4. Petitioner argues that, instead of
construing his complaint as a habeas petition, the Magistrate
Judge should have taken the complaint to the “Special
Prosecutors office” and had a warrant issued to remove
Petitioner from state custody until a valid charging
instrument and plea agreement could be produced, as well as
valid evidence that he killed someone. Id. at 3-4.
objections are without merit. Petitioner's complaint and
objections make clear that he is challenging the legality of
his conviction and seeking immediate release from
confinement. The Supreme Court has held that habeas corpus is
the exclusive remedy when a prisoner challenges the fact or
duration of his confinement and seeks immediate release from
prison. Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)
(citing Preiser v. Rodriguez, 411 U.S. 475, 482
(1973)); see Carson v. Johnson, 112 F.3d 818, 820-21
(5th Cir. 1997). Accordingly, the Magistrate Judge properly
construed the petition as an application for the writ of
construed the complaint as an application for the writ of
habeas corpus, the Magistrate Judge properly concluded that
the Court lacks jurisdiction. Petitioner has not secured
leave from the Fifth Circuit to file a successive petition,
and his petition must therefore be denied. See,
e.g., Evans v. Director, TDCJ-CID, No.
1:12cv343, 2012 WL 5356053, at *1 (E.D. Tex. Sept. 6, 2012).
made a de novo review of the objections raised by
Petitioner to the Magistrate Judge's Report, the Court is
of the opinion that the findings and conclusions of the
Magistrate Judge are correct and Petitioner's objections
are without merit. The Court therefore adopts the findings
and conclusions of the Magistrate Judge as the findings and
conclusions of the Court.
it is hereby ORDERED that the Report and
Recommendation (Docket No. 5) be ADOPTED. It
that Petitioner's petition for the writ of habeas corpus
is DISMISSED WITH PREJUDICE as to its
refiling without obtaining permission from the Fifth Circuit,
but without prejudice as to its refiling once such permission
has been obtained. It is further
that a certificate of appealability is
DENIED, with such denial referring solely to
an appeal of this case and having no effect upon
Petitioner's right to seek permission from the Fifth
Circuit to file a successive petition. It is further
that any and all motions that may be pending in this civil