United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Petitioner's Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. #
1). Respondents have answered the petition and seek its
dismissal because it is a second or successive habeas
petition, and Petitioner has not received permission from the
Eleventh Circuit to file a second or successive petition.
(Doc. # 3 at 2). Petitioner has replied that the Eleventh
Circuit denied him leave to file a second or successive
petition in December 2016 because it could not find any
records of a prior Section 2254 petition. (Doc. # 5 at 1).
Moreover, he argues that a prior Section 2254 petition
entered into the record by Respondents was dismissed without
prejudice. (Id.). After careful review, and for the
reasons explained below, the court concludes that
Petitioner's petition is due to be dismissed without
prejudice because Petitioner has not received authorization
to file this second or successive petition.
1982, an Alabama circuit court convicted Petitioner of first
degree rape and sentenced him to 99 years' imprisonment.
(Doc. # 3-1 at 1). The Alabama Court of Criminal Appeals
affirmed his judgment in 1983. (Id. at 5). This
court dismissed a petition for habeas corpus filed by
Petitioner in 1984 because he had failed to exhaust his state
remedies. (Doc. # 3-6 at 1).
then filed a Section 2254 petition in July 1986. (Doc. # 3-1
at 3-8). He claimed that the state wrongfully impeached his
testimony by examining a rebuttal witness about an immaterial
issue. (Id. at 7). Moreover, he insisted that the
state court should have granted him a new trial because it
improperly allowed the jury to consider the immaterial
testimony. (Id.). A Magistrate Judge of this court
recommended denying Petitioner's habeas petition because
(1) the Alabama Court of Criminal Appeals had addressed the
issue on direct appeal and decided it against Petitioner, and
(2) a violation of state procedural rules generally does not
rise to a violation of a defendant's fundamental rights.
(Doc. # 3-2 at 4-5). This court adopted the Report and
Recommendation and denied Petitioner's Section 2254
habeas petition. (Doc. # 3-3).
November 2016, Petitioner sought leave from the Eleventh
Circuit to file a second or successive Section 2254 petition.
(Doc. # 3-4). The Eleventh Circuit denied his application
because it could not find documentary evidence that
Petitioner had filed a prior Section 2254 petition that was
denied with prejudice. (Doc. # 3-5 at 4).
central question in this case is whether this Section 2254
petition is a second or successive petition subject to the
restrictive requirements of 28 U.S.C. § 2244(b). Absent
circumstances not present in this case, this court does not
have jurisdiction to consider a second or successive habeas
petition if the petitioner has not received authorization
from the Eleventh Circuit to file the petition. Insignares v.
Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1278
(11th Cir. 2014).
habeas petition is “second or successive” if it
seeks invalidation, in whole or in part, of the same state
court judgment challenged in an earlier habeas petition.
Magwood v. Patterson, 561 U.S. 320, 332 (2010).
Having said that, a habeas petition from a state prisoner is
not considered to be second or successive if the state
prisoner's first habeas petition was dismissed without
prejudice for failure to exhaust available state remedies.
Slack v. McDaniel, 529 U.S. 473, 487 (2000).
claims that his prior federal habeas petition was denied
without prejudice for failure to exhaust state remedies.
(Doc. # 5 at 1). While Petitioner's 1984 federal
habeas petition was dismissed without prejudice for failure
to exhaust state remedies (Doc. # 3-6 at 1), his
1986 federal habeas petition was denied on the
merits (Docs. # 3-2 at 4-5; 3-3). Therefore, Petitioner is
subject to the limitations on filing a second or successive
habeas petition in this court. Because he has not received
permission from the Eleventh Circuit to file this second or
successive petition, it is due to be dismissed without
prejudice. An order consistent with this Memorandum Opinion
will be entered.
 For example, Petitioner's claim in
this habeas petition that he was charged under an invalid
indictment is not a claim that ripened after the denial of
his first Section 2254 petition in 1986. Cf. Stewart v.
United States, 646 F.3d 856, 860 (11th Cir. 2011)
(“Particularly when a petitioner raises a claim that
could not have been raised in a prior habeas petition, ...