United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, Magistrate Judge.
This case is before the court on a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Charles Louis Peterson ("Peterson") on April 27, 2012. Doc. No. 1. Peterson appears to present claims challenging the 30-year sentence imposed upon his 1997 guilty plea conviction in the Montgomery County Circuit Court for the offense of felony murder, in violation of § 13A-6-2(a)(3), Ala. Code 1975. See Doc. No. 1 at 9-11; Doc. No. 9 at 2-4; Doc. No. 10 at 1-2. Peterson's arguments are difficult to parse, and it appears, but is not certain, that he may also challenge his 2006 guilty plea conviction for second-degree burglary, in violation of § 13A-7-6, Ala. Code 1975, for an offense factually related to his earlier felony-murder conviction. See Doc. No. 1 at 9-11.
The respondents have filed an answer (Doc. No. 7) in which they argue that where Peterson is challenging the sentence imposed for his 1997 felony-murder conviction, his petition is successive and should be dismissed because he did not obtain the required permission from the Eleventh Circuit Court of Appeals to file a successive habeas application. See 28 U.S.C. § 2244 (b)(3)(A). The respondents maintain that if Peterson is challenging his 2006 conviction for second-degree burglary, his petition is time-barred under the one-year limitation period in 28 U.S.C. § 2244(d).
For the reasons that follow, the court finds Peterson is not entitled to federal habeas relief and that his petition should be denied and this action dismissed.
Challenge to Sentence for Felony-murder Conviction
As for Peterson's challenge to the sentence imposed upon him in 1997 for felony murder, this court's records establish that Peterson challenged that same conviction and sentence in a previous § 2254 habeas petition filed on June 13, 2005, and denied and dismissed with prejudice by this court on November 27, 2007. See Peterson v. Mosley, No. 2:05cv567-WKW, 2007 WL 4210883 (M.D. Ala. 2007).
Under 28 U.S.C. § 2244(b)(3)(A), "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." "A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals" and may be granted "only if [the assigned panel of judges] determines that the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)(1) or (b)(2)]." 28 U.S.C. § 2244(b)(3)(B) and (C).
Peterson has not received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to consider his successive application for federal habeas relief. "Because this undertaking [is a successive] habeas corpus petition and because [Peterson] had no permission from [the Eleventh Circuit] to file a [successive] habeas petition, ... the district court lack[s] jurisdiction to grant the requested relief." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). Consequently, the instant petition for writ of habeas corpus challenging Peterson's Alabama sentence for felony murder should be denied and this case summarily dismissed. Id. at 934; see also, e.g. Fugate v. Department of Corrections, 301 F.3d 1287, 1288 (11th Cir. 2002) ("The district court lacked jurisdiction to consider [the petitioner's] claim because he had not applied to this court for permission to file a successive application.)
Challenge to Second-degree-burglary Conviction
Assuming Peterson means to challenge his 2006 conviction for second-degree burglary, his petition is untimely under 28 U.S.C. § 2244(d).
Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...