United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
a petition for writ of habeas corpus under 28 U.S.C. §
2254 filed on September 23, 2016, Nicholas Wells
(“Wells) challenges convictions entered against him in
two cases in the Circuit Court of Covington County, Alabama.
Doc. No. 1. The first set of convictions challenged by
Wells comprises convictions imposed against him for three
counts of unlawful distribution of a controlled substance
following a jury trial in the Covington Circuit Court in
March 2004 in No. CC-03-414. The second set of convictions
challenged by Wells comprises convictions imposed against him
for breaking and entering a vehicle and first-degree receipt
of stolen property pursuant to a guilty plea entered in the
Covington Circuit Court in March 2005 in No.
reasons that follow, to the extent Wells challenges his
controlled substance convictions in No. CC-03-414, his
petition is a successive petition subject to dismissal
because it was filed without preauthorization from the
Eleventh Circuit Court of Appeals. And to the extent Wells
challenges his convictions for breaking and entering a
vehicle and receipt of stolen property No. CC-02-417, his
petition is time-barred under AEDPA's one-year limitation
Controlled Substance Convictions: Covington Circuit Court No.
has filed a previous habeas corpus petition under 28 U.S.C.
§ 2254 challenging his March 2004 controlled substance
convictions in Covington Circuit Court No. CC-03-414. The
instant § 2254 petition represents Wells's second
attempt in this court at challenging those convictions.
Wells's previous § 2254 petition, which he filed in
this court in February 2012, was denied and dismissed with
prejudice on July 16, 2014. See Wells v. White, et
al., Civil Action No. 2:12cv274-TMH (M.D. Ala. 2014).
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
petition challenging his March 2004 controlled substance
convictions. “Because this undertaking [is a
successive] habeas corpus petition and because [Wells] 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 Bd. of Pardons & 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
to the extent Wells is challenging his controlled substance
convictions in Covington Circuit Court No. CC-03-414, his
§ 2254 petition should be dismissed as a successive
petition filed without the requisite preauthorization from
the Eleventh Circuit Court of Appeals.
Convictions for Breaking and Entering a Vehicle and Receipt
of Stolen Property: Covington Circuit Court No.
28 U.S.C. § 2244(d) of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) provides the
statute of limitations for § 2254 petitions and states:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...