United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
April 5, 2016, Petitioner Larry Johnson, a person in custody
under a judgment of a court of Alabama, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(Doc. # 1-1). Construing that petition as made under 28
U.S.C. § 2254, the district court for the Middle
District of Alabama transferred Johnson's petition to
this Court. (See Doc. # 1-3 at 3; Doc. # 1-4). Upon
consideration, the court finds the petition is due to be
dismissed as successive.
February 5, 1986, Johnson was convicted by a jury of one
count of manslaughter in the Circuit Court of Jefferson
County, Alabama. See Johnson v. Jones, Case No.
2:14-cv-02190-KOB-JHE (N.D. Ala.) at Doc. # 1. He received a
life sentence. Id. Johnson appealed his conviction
to the Alabama Court of Crimina l Appeals, which affirmed his
conviction and sentence. Id. . Johnson did not file
a petition for a writ of certiorari in the Alabama Supreme
Prior ' 2254 Action
filed a petition for writ of habeas corpus in this court on
November 12, 2014, challenging the February 14, 2014 denial
of his motion for reconsideration of his sentence under Ala.
Code § 13A-5-9.1. Johnson v. Jones, et al.,
2:14-cv-02190-KOB-JHE (N.D. Ala.). The court denied the
petition on the merits on June 25, 2015. Id. at
Docs. # 7, 9, & 10. On January 7, 2016, the Eleventh
Circuit Court of Appeals denied Johnson's motion for a
certificate of appealability, finding Johnson had failed to
make the requisite showing under 28 U.S.C. § 2253(c)(2).
See Id. at Doc. # 21. The Eleventh Circuit denied
Johnson's motion for reconsideration on March 2, 2016.
See Id. at Doc. # 22.
filed the instant petition, styled as a habeas petition under
28 U.S.C. § 2241, in the Middle District of Alabama on
April 5, 2016. (Doc. # 1-1). In the petition, Johnson
challenges the denial of the same motion for reconsideration
challenged in his prior § 2254 action. (See Id.
at 2). The magistrate judge assigned to the case construed
Johnson's petition as one made under § 2254:
“Because a state prisoner seeking to challenge the
validity and execution of his conviction or sentence must do
so through a petition for writ of habeas corpus under 28
U.S.C. § 2254, see, e.g., Cook v. Bak er, 139
F.App'x 167, 168 (11th Cir. 2005), Johnson's instant
petition should be construed as a petition for writ of habeas
corpus under 28 U.S.C. § 2254.” (Doc. # 1-1 at 3).
On May 13, 2016, the district judge adopted the magistrate
judge's report and recommendation and, per that R&R,
transferred the case to the Northern District of Alabama.
(Doc. # 1-4).
18, 2016, the magistrate judge assigned to the case in the
Northern District of Alabama ordered Johnson to show cause
why his petition should not be dismissed as successive under
28 U.S.C. § 2244. (Doc. 3). Johnson did not respond.
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), effective April 24, 1996, amended 28 U.S.C. §
2244 to read in part:
(b)(3)(A) Before 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.
clear effect of this provision establishes a statutory
pre-condition to filing a “second or successive”
habeas petition, requiring the applicant to obtain the
authorization of the Eleventh Circuit before it is filed in
the district court. The purpose of the statute is to prevent
the filing of successive petitions and to deprive the
district court of jurisdiction to consider a successive
petition unless it has been authorized by the appropriate
court of appeals.
has not obtained authorization from the Eleventh Circuit to
bring a successive petition in this court. Thus, this court
lacks jurisdiction to consider Johnson's petition, and it
is due to be DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 2244(b)(3)(A). A separate Order will be entered
to that effect. If Johnson obtains the required order from