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Lewis v. Ratledge

United States District Court, S.D. Alabama, Southern Division

October 19, 2017

MONTREZS DEJUAN LEWIS, #07741-003, Petitioner,
v.
CHARLES RATLEDGE, Respondent.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         Petitioner Montrezs Dejuan Lewis (“Lewis”), a federal prisoner proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1, 3). The Court has referred the petition to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts. See S.D. Ala. GenLR 72(b); (07/10/2017, 07/31/2017, and 10/02/2017 electronic references).

         Having reviewed the petition, and the record in this case, in accordance with Rule 8(a) of the Rules Governing Section 2254 Cases, the undersigned finds that Petitioner's amended habeas petition (Doc. 3) is due to be DISMISSED for lack of jurisdiction.

         I. Discussion

         On July 10, 2017, Lewis filed his initial habeas petition, which was superseding by the instant petition. (Docs. 1, 3). Petitioner identifies the grounds on which habeas relief is due as follows: (1) whether the State of Alabama Court of Appeals and Supreme Court erred when they ruled that Petitioner's appeal was untimely filed, (2) whether the State of Alabama erred under Code of Alabama § 20-2-93, when they forfeited Petitioner's vehicle. (Doc. 3 at 6-7).

         Title 28 § 2254(a) states, in relevant part:

[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)(emphasis added). However, Lewis is not in state custody, and has been in federal custody since 2007. Rather, Lewis is serving a life sentence in the custody of the federal Bureau of Prisons. (Doc. 3 at 1).[1] Thus, Lewis is not in state custody now, nor was he in state custody at the time his petition was filed. As the Eleventh Circuit has explained

Federal district courts entertain petitions for habeas relief filed by 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); see also Id. § 2241(c) (authorizing federal courts to grant habeas relief to a petitioner who is in custody illegally). A federal habeas petitioner must be “ ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (per curiam).

Diaz v. State of Florida Fourth Judicial Circuit ex rel. Duval Cty., 683 F.3d 1261, 1263-64 (11th Cir. 2012). As Lewis is not in custody pursuant to the judgment of a state court, this Court lacks jurisdiction pursuant to § 2254. See also Diaz v. State of Florida Fourth Judicial Circuit ex rel. Duval Cty., 683 F.3d 1261, 1265-66 (11th Cir. 2012) (“Because Diaz's state sentence is fully expired and a grant of relief would not serve to accelerate his release from federal confinement, we find that at the time of filing he was not “in custody pursuant to the judgment of a State court” within the meaning of 28 U.S.C. § 2254(a)…. …As a result of the full satisfaction of the state court judgment, Diaz has been transferred to the sole custody of the Federal Bureau of Prisons to serve the remainder of his sentence. He is thus no longer in custody pursuant to any judgment of a state court, and the district court properly dismissed the petition.”).

         Further, the Court cannot construe Lewis' action as a motion pursuant to 28 U.S.C. § 2255 as he has previously filed a § 2255 motion. (See Doc. 265, 07-CR-00266-KD-M). Without the Court of Appeals' authorization to file a second or successive § 2255 motion, the Court lacks jurisdiction to consider such a motion.[2]See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (“Without authorization, the district court lacks jurisdiction to consider a second or successive petition.”); Rule 9 of the Rules Governing § 2255 Habeas Cases (“Before presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion, as required by 28 U.S.C. § 2255, para. 8.”). Accordingly, the undersigned RECOMMENDS that Lewis' motion pursuant to 28 U.S.C. § 2254 be DISMISSED for lack of jurisdiction.

         II. Certificate of Appealability

         In actions such as this one brought under § 2254, a “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts. “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A).

         “A certificate of appealability may issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right.' ” Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)). “A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quotations omitted). However, “a COA does not require a showing that the appeal will succeed.” Id. at 337. Where, as here, habeas relief is denied on procedural grounds without reaching the merits of the underlying constitutional claim(s), “a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition ...


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