United States District Court, Middle District of Alabama, Northern Division
W. HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #14) and Petitioner’s objection thereto (Doc. #15). Following an independent evaluation and de novo review of the file in this case, the court finds the objection to be without merit, and it is hereby OVERRULED.
Peterson objects to the Magistrate Judge’s Recommendation finding his 2254 petition to be either successive or time-barred, depending on which of two state convictions he was seeking to challenge by his petition - one for felony murder or one for second-degree burglary.
In his objection, Peterson insists he was challenging his prior conviction and sentence for felony murder, but that the Recommendation failed to address his claims as to that conviction and sentence. Notwithstanding Peterson's objection, the felony murder conviction (and sentence) was one of the two convictions addressed by the Magistrate Judge in his Recommendation. See Recommendation, Doc. No. 14 at pp. 2-4. As to that conviction, the Recommendation found Peterson's 2254 petition was a successive petition filed without Eleventh Circuit permission. A footnote in the Recommendation points out that Peterson even raised an identical argument as to that conviction and sentence in his prior 2254 petition. See Recommendation at p. 2 n.3.
Peterson's objection is therefore meritless, and his 2254 petition is successive as to his felony murder conviction and sentence.
Therefore, the court ADOPTS the Recommendation of the Magistrate Judge, and it is hereby ORDERED as follows:
1. To the extent Peterson challenges the sentence for his Alabama felony-murder conviction, this action is DISMISSED under 28 U.S.C. § 2244(b)(3)(A), as Peterson has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application.
2. To the extent Peterson challenges his Alabama conviction for second-degree burglary, this action is DISMISSED with prejudice, as Peterson failed to submit his claims challenging the conviction within the one-year limitation period set out in 28 U.S.C. § 2244(d).
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders:
Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are ...