United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, Magistrate Judge.
This case is before the court on a petition for writ of habeas corpus by a person in state custody, see 28 U.S.C. § 2254, filed on June 2, 2015, through counsel, by petitioner Willie Gardner ("Gardner"). (Doc. No. 1.) Gardner, an Alabama prisoner, challenges the sentence of life without the possibility of parole entered against him in October 2003 upon his guilty-plea conviction in the Circuit Court of Montgomery County for the offense of capital murder. He argues that his life sentence without the possibility of parole violates the Eighth Amendment in light of the United States Supreme Court's holding in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469 (2012) (holding that mandatory imposition of life imprisonment without the possibility of parole for juvenile offenders sentenced as adults violates the Eighth Amendment).
The records of this court indicate that on April 25, 2006, Gardner filed a previous petition for habeas corpus relief under 28 U.S.C. § 2254 challenging the same capital murder conviction and sentence of life without parole entered against him in October 2003 by the Circuit Court of Montgomery County. See Gardner v. Jones, et al., Civil Action No. 2:06cv413-WHA, Doc. No. 1. In that previous habeas action, this court found that Gardner's habeas claims were without merit and, on April 27, 2009, denied his petition and dismissed the case with prejudice. See id., Doc. Nos. 17-19.
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." 28 U.S.C. § 2244(b)(3)(A). "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) & (C).
It is clear from the record that Gardner 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. ( See Doc. No. 2 at 1-2.) "Because this undertaking [is a successive] habeas corpus petition and because [Gardner] 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 must be denied and this case summarily dismissed. Id . at 934.
Accordingly, it is the RECOMMENDATION of the undersigned Magistrate Judge that:
1. The petition for writ of habeas corpus filed by Gardner be DENIED.
2. This cause of action be DISMISSED under 28 U.S.C. § 2244(b)(3)(A) as Gardner has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application.
It is further
ORDERED that on or before July 7, 2015, the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised this Recommendation is not a final order; therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, ...