United States District Court, Middle District of Alabama, Eastern Division
W. KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE
On January 22, 2015, the Magistrate Judge filed a Recommendation in this case. (Doc. # 4.) On February 4, 2015, Petitioner Silas Martin filed an objection to the Recommendation. (Doc. # 5.) After an independent and de novo review of those portions of the Recommendation to which objection is made, the court finds that Mr. Martin’s objection is due to be overruled and the Recommendation adopted. See 28 U.S.C. § 636(b).
Mr. Martin filed this 28 U.S.C. § 2254 petition challenging his state-court conviction for attempted sodomy in the second degree entered by the Circuit Court of Lee County, Alabama, on December 20, 2014. This is not Mr. Martin’s first § 2254 challenge. In September 2009, Mr. Martin filed a previous petition for habeas corpus relief under § 2254. Martin v. Hetzel, No. 3:09-CV-875-ID (M.D. Ala. Sept. 14, 2009). As the Magistrate Judge highlighted in her Recommendation, Mr. Martin’s previous collateral attack was dismissed with prejudice in 2011.
Because this is Mr. Martin’s second § 2254 petition, the Magistrate Judge determined that § 2244(b)(3)(A) applies, requiring Mr. Martin to first receive approval from a three-judge panel of the Eleventh Circuit Court of Appeals “authorizing the district court to consider” a second or successive § 2254 petition. 28 U.S.C. § 2244(b)(3)(A). In his objection to the Recommendation, Mr. Martin argues that his petition does not constitute a “second or successive collateral attack” because it is based on newly discovered evidence and information. (Doc. # 5.) Section 2244(b)(3)(A) is triggered, however, regardless of whether an individual’s second § 2254 petition is based on a previously submitted claim or on newly discovered evidence. See 28 U.S.C. § 2255(h). Accordingly, because Mr. Martin has not applied for or received an order from a three-judge panel of the Eleventh Circuit Court of Appeals, this court lacks jurisdiction to consider his second petition for habeas corpus relief.
Accordingly, it is ORDERED as follows:
1. Mr. Martin’s objection (Doc. # 5) is OVERRULED.
2. The Recommendation (Doc. # 4) is ADOPTED.
3. The petition for writ of habeas corpus is DENIED.
4. This cause of action is DISMISSED without prejudice under 28 U.S.C. § 2244(b)(3)(A) as Mr. Martin has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing ...