United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
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.
Second or Successive Habeas Petition
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
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)).
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
Certificate of Appealability
“[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).
Appeal In Forma Pauperis
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).
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.