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Kennedy v. Mobile, Alabama District Attorney's Office

United States District Court, S.D. Alabama, Southern Division

October 23, 2014

RICHARD DARON KENNEDY, Petitioner,
v.
MOBILE, ALABAMA DISTRICT ATTORNEY'S OFFICE, et al., Respondents.

ORDER

WILLIAM H. STEELE, Chief District Judge.

This long-closed federal habeas corpus matter comes before the Court on petitioner Richard Daron Kennedy's Motion to Supplement Motion Pursuant to Rule 60(b)(6) (doc. 16).

In a pair of Orders (docs. 13 & 15) dated October 6, 2014 and October 16, 2014, the Court has already explained in detail why Kennedy is not entitled to relief under Rule 60(b)(6). The Court will not rehash those explanations here. The undersigned writes to Kennedy's latest Motion for the limited purpose of highlighting petitioner's erroneous understanding of what makes a habeas petition "second or successive" for purposes of 28 U.S.C. § 2244(b). With no citations to authority, Kennedy declares that a habeas "petition's ground cannot be successive if it is raised for the first time or if that ground has never been adjudicated on its merits." (Doc. 16, at 2.) On that basis, Kennedy reasons, his new actual innocence claim filed in his 2014 habeas petition cannot be successive because it "has never been adjudicated on its merits." ( Id. at 2-3.)

Kennedy is wrong. As an initial matter, any reliance by Kennedy on § 2241 principles to evade AEDPA gatekeeping requirements is invalid because "a prisoner may not avoid gatekeeping under § 2244(b) or § 2255(h) by a mere change of caption when, in substance, their lawsuit collaterally attacks a sentence." Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). Although Kennedy captioned his petition as being brought under § 2241, his petition is manifestly engaging in a collateral attack of his sentence, rather than challenging its execution. Therefore, he cannot take solace in caselaw discussing when a § 2241 petition is successive under § 2244(a), as he appears to be doing here, where the dismissal ruling in question was properly made pursuant to § 2244(b).[1]

Under § 2244(b), which Kennedy must satisfy because his petition contains challenges to his state-court conviction that must be brought under 28 U.S.C. § 2254, raising a new claim that has not been previously adjudicated on the merits unquestionably does not insulate a habeas petition from second or successive status. See 28 U.S.C. § 2244(b)(2) (setting forth general rule that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed" unless certain enumerated circumstances are present and the petitioner obtains appellate authorization) (emphasis added). Of course, "before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions." Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Kennedy did not obtain such authorization from the Eleventh Circuit; therefore, his petition was properly dismissed for lack of jurisdiction and his Rule 60(b) Motion was properly denied.

For all of the foregoing reasons, petitioner's Motion to Supplement (doc. 16) is denied.


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