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Richardson v. Myers

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

February 12, 2017

JEFFERY RICHARDSON, # 151475, Petitioner,
v.
WALTER MYERS, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker Chief United States Magistrate Judge.

         Jeffery Richardson (“Richardson”) is a state inmate confined at the Easterling Correctional Facility in Clio, Alabama. Through a petition for writ of habeas corpus under 28 U.S.C. § 2254, Richardson seeks to challenge the conviction for first-degree rape entered against him by the Circuit Court of Elmore County in February 1989. Richardson is serving a 30-year sentence for that conviction.

         DISCUSSION

         A review of this court's records indicates that Richardson has filed a previous habeas corpus petition under 28 U.S.C. § 2254 challenging his 1989 rape conviction. The instant petition represents Richardson's second attempt at challenging the merits of his 1989 conviction. Richardson's initial federal habeas petition, filed on January 21, 1992, was denied on the merits and dismissed with prejudice on February 17, 1994. See Richardson v. Morrison, et al., Civil Action No. 2:92cv89-MHT (M.D. Ala. 1994).

         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)].”[1] 28 U.S.C. § 2244(b)(3)(B) & (C).

         Richardson furnishes no certification from the Eleventh Circuit Court of Appeals authorizing this court to proceed on his successive application for habeas relief. “Because this undertaking [is a successive] habeas corpus petition and because [Richardson] 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). See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (providing that, without an order from the court of appeals authorizing the district court to consider a successive habeas petition, the district courts lack jurisdiction to consider the petition). Consequently, the instant petition for writ of habeas corpus should be denied and this case summarily dismissed.

         CONCLUSION

         Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Richardson's petition for writ of habeas corpus under 28 U.S.C. § 2254 be DISMISSED in accordance with the provisions of 28 U.S.C. § 2244(b)(3)(A) as Richardson has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing a federal district court to consider his successive habeas application.

         It is further ORDERED that the parties shall file any objections to this Recommendation on or before January 31, 2017. Any objections filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge's Recommendation to which the parties object. Frivolous, conclusive or general objections will not be considered by the District Court. Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall “waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions” except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

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Notes:

[1] Section 2244(b)(1) provides:

A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior ...

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