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Greer-El v. State

United States District Court, M.D. Alabama, Eastern Division

June 26, 2015

JEROME GREER-EL, #185 535, Petitioner,
v.
STATE OF ALABAMA, et al., Respondents.

RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

Petitioner, a state inmate incarcerated at the Elmore Correctional Facility in Elmore, Alabama, has filed a petition for habeas corpus relief under 28 U.S.C. § 2241. The matter is now before the court for a review of the petition under Rule 4, Rules Governing Section 2254 Cases in the United States District Courts ["Rule 4"].[1] Upon review, the court concludes that the instant habeas corpus action is due to be denied and dismissed.

I. DISCUSSION

A. Nature of the Petition

Petitioner brings this habeas petition under § 2241 challenging the validity and legality of his current incarceration claiming that the convictions and sentence under which he is incarcerated are null and void due to issuance of fraudulent arrest warrants in 2004 regarding these offenses. Petitioner seeks his release from custody due to the alleged unconstitutional restraint on his liberty. Doc. No. 1 .

Petitioner previously filed a 28 U.S.C. § 2254 habeas corpus petition in this court challenging the convictions for shooting into an occupied dwelling and shooting into an unoccupied vehicle imposed upon him on April 25, 2005 by the Circuit Court for Macon County, Alabama. The trial court sentenced Petitioner on May 25, 2005, to 21 years in prison on each conviction, to run concurrently. See Greer-El v. Wheeler-White, et al., Civil Action No. 3:10-CV-1055-TMH (M.D. Ala. 2013). In that prior action, the court denied Petitioner relief from his Macon County convictions, finding his habeas application to be without merit. Id . at Doc. Nos. 74, 78, 79 .

Petitioner now returns to this court ostensibly seeking relief under 28 U.S.C. § 2241 from his 2005 convictions. However, the petition is properly construed as a request for relief under 28 U.S.C. § 2254. See, e.g., Spivey v. State Bd. of Pardons & Paroles, 279 F.3d 1301, 1302 n. 1 (11th Cir. 2002) ( per curiam ) (looking past "artfully" labeled filing to apply limit on second or successive habeas petitions); Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932, 933 (11th Cir.2001) ( per curiam ) ("We look at the kind of relief Appellant seeks from the federal courts and conclude that, however the Appellant described it [motion for stay of execution], the motion was for habeas corpus relief.").

Even though Petitioner's petition is "authorized by § 2241, it is also governed by § 2254 because [Petitioner] is in custody pursuant to the judgment of a State court.' 28 U.S.C. § 2254(a)." Medberry v. Crosby, 351 F.3d 1049, 1054 (11th Cir. 2003); Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir. 2004) (a § 2241 habeas petition filed by a prisoner in custody under the judgment of a state court is subject to the procedural restrictions contained in § 2254). In coming to this conclusion, the Eleventh Circuit determined that "the writ of habeas corpus is a single post-conviction remedy principally governed by two different statutes. See 28 U.S.C. § 2241(a) (Writs of habeas corpus may be granted....'); 28 U.S.C. § 2254(a) ([Federal courts] shall entertain an application for a writ of habeas corpus...'). These identical statutory references to the writ of habeas corpus' must be read as referring to the same remedy. See Sorenson v. Sec'y of the Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606, 89 L.Ed.2d 855 (1986)." Medberry, 351 F.3d at 1059. Thus, "if a state prisoner is in custody pursuant to the judgment of a State court, ' his petition is subject to § 2254." Id . at 1062.

A review of the instant petition reflects that it seeks the type of relief provided by 28 U.S.C. § 2254. Under this statute:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). The petition shows that Petitioner is "in custody pursuant to the judgment of a State Court." It also shows that Petitioner seeks to challenge the legality and validity of his convictions which led to his current incarceration. "Section § 2254 is triggered where a prisoner is in custody pursuant to the judgment of a State court.'... [Petitioner] is in custody pursuant to the judgment of the [Alabama] court. Therefore § 2254 applies to [Petitioner's] petition [and]... [he] cannot evade the procedural requirements of § 2254 by filing something purporting to be a § 2241 petition." Thomas, 371 F.3d at 787. This court must apply the procedural restrictions contained in § 2254 to the instant petition.

B. The 2005 Convictions

Title 28 U.S.C. § 2244(b)(3)(A) requires that "[b]efore a second or successive application [for habeas corpus relief] 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 determines that the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)(2)]." 28 U.S.C. § 2244(b)(3)(B) and (c).

As explained, this court's records demonstrate that Petitioner filed a previous habeas corpus petition under 28 U.S.C. § 2254 challenging his 2005 convictions for shooting into an occupied dwelling and shooting into an unoccupied vehicle. Greer-El v. Wheeler-White, et al., Case Action No. 3:10-1055-TMH (M.D. Ala. 2013).[2] In the prior ...


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