United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker Chief United States Magistrate Judge.
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.
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.
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).
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.
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.
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).
 Section 2244(b)(1) provides:
A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a