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Parker v. Crow

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

September 19, 2018

RONNIE ODELL PARKER, Petitioner,
v.
JOHN CROW Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         Petitioner Ronnie Odell Parker, an Alabama inmate proceeding pro se and in forma pauperis, has filed a Superseding Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). Under S.D. Ala. GenLR 72(b), Parker's habeas petition has been referred to the undersigned Magistrate Judge for entry of a recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 10 of the Rules Governing Section 2254 Cases in the United States District Courts, and S.D. Ala. GenLR 72(a)(2)(R). After conducting preliminary review in accordance with Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned finds that Parker's superseding habeas petition (Doc. 1) is due to be DISMISSED for lack of jurisdiction.

         I. Second or Successive Habeas Petition

         Parker's petition challenges a criminal judgment entered against him by the Circuit Court of Clarke County, Alabama, in May 13, 1991, on his convictions for first-degree sexual abuse. However, the docket of this Court reflects that Parker already filed a habeas petition in 1996 challenging that conviction. (See Ronnie Odell Parker v. Leslie Thompson, S.D. Ala. No. 1:96-cv-01238-RV-C). The record in Parker's 1996 habeas case reflects that his petition was dismissed with prejudice and that his request for habeas corpus relief was denied as having no merit pursuant to 28 U.S.C. foll.§ 2254 and Rule 8, by judgment entered August 26, 1998. (See S.D. Ala. No. 1:96-cv-01238-RV-C, Docs. 16, 20, 21). The record does not reflect that any appeal was taken in Parker's 1996 habeas case. Thus, the habeas petition in this action (Doc. 1) is a second or successive petition challenging his 1991 criminal judgment.[1]

         “Before presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4).” Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts. Here, nothing in the record indicates that Parker has received such an order. “Without authorization, the district court lacks jurisdiction to consider a second or successive petition.” Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam) (citing Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (per curiam)).

         Accordingly, the undersigned finds that Parker's present habeas petition (Doc. 1) is due to be DISMISSED for lack of jurisdiction as an unauthorized second or successive petition.

         II. Certificate of Appealability

         Generally, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant” in a § 2254 case. Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts. However, a COA is unnecessary when, as here, the district court is dismissing a successive petition for lack of jurisdiction. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam).

         III. Appeal In Forma Pauperis

         “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).

A party demonstrates good faith by seeking appellate review of any issue that is not frivolous when examined under an objective standard. See Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). An issue is frivolous when it appears that “the legal theories are indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (citations omitted). In other words, an IFP action is frivolous, and thus not brought in good faith, if it is “without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). More specifically, “arguable means capable of being convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (internal quotations and citations omitted). Nevertheless, where a “claim is arguable, but ultimately will be unsuccessful, ” it should be allowed to proceed. Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th Cir. 1991).

Ghee v. Retailers Nat. Bank, 271 Fed.Appx. 858, 859-60 (11th Cir. 2008) (per curiam) (unpublished).

         It is indisputable that this Court lacks jurisdiction to consider the merits of Parker's present habeas petition because it is an unauthorized second or successive petition. Accordingly, the undersigned RECOMMENDS the Court certify that any appeal by Parker of the dismissal of the present habeas petition would be without merit and therefore not taken in good faith.

         IV. Conclusion ...


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