United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
case is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by
state inmate Charles Graham on August 22, 2018. Doc. No. 1.
Graham challenges the February 2002 convictions for
first-degree rape, first-degree theft of property, and
second-degree burglary entered against him by the Circuit
Court of Elmore County, Alabama. The trial court sentenced
Graham as an habitual offender to 25 years in prison for the
rape conviction and 15 years in prison for the theft and
burglary convictions. For the reasons that follow, it is the
recommendation of the Magistrate Judge that Graham's
§ 2254 petition be dismissed as a successive petition
filed without the required appellate court authorization.
instant petition represents Graham's third habeas
petition under 28 U.S.C. § 2254 challenging his 2002
Elmore County convictions. Graham filed his first § 2254
petition with this court in November 2002. See Graham v.
State of Alabama, et al., Civil Action No.
2:02cv1290-MEF (M.D. Ala. 2003), Doc. No. 1. In that habeas
action, the court denied Graham relief on the claims in his
petition and dismissed the case with prejudice. See
id., Doc. Nos. 14-16. Graham filed a second § 2254
petition with this court in December 2014. See Graham v.
J.C. Giles, et al., Civil Action No. 2:04cv491-WHA (M.D.
Ala. 2004), Doc. No. 1. That petition was denied and the
cause of action was dismissed under 28 U.S.C. §
2244(b)(3) because Graham failed to obtain the required order
from the Eleventh Circuit Court of Appeals authorizing this
court to consider his successive habeas application. See
id., Doc. Nos. 6, 9 & 10.
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).
instant § 2254 petition is a successive petition subject
to the limitations of § 2244(b). Graham furnishes no
certification from the Eleventh Circuit Court of Appeals
authorizing this court to proceed on his successive petition
for habeas corpus relief. “Because this undertaking [is
a successive] habeas corpus petition and because [Graham] 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 Board of Pardons and 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
petition). Consequently, the instant petition for writ of
habeas corpus should be denied and this case summarily
it is the RECOMMENDATION of the Magistrate Judge that
Graham's petition for writ of habeas corpus under 28
U.S.C. § 2254 be denied and that this action be
DISMISSED under the provisions of 28 U.S.C. §
2244(b)(3)(A), as Graham has failed to obtain the requisite
order from the Eleventh Circuit Court of Appeals authorizing
a federal district court to consider his successive habeas
that on or before October 4, 2018, the
petitioner may file objections to the Recommendation. The
petitioner must specifically identify the factual findings
and legal conclusions in the Recommendation to which
objection is made. Frivolous, conclusive, or general
objections will not be considered.
to file a written objections to the Magistrate Judge's
findings and recommendations in accordance with the
provisions of 28 U.S.C. § 636(b)(1) shall bar a party
from a de novo determination by the District Court
of factual and legal issues covered in the Recommendation and
waives the right of a party to challenge on appeal the
District Court's order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court
except upon grounds of plain error or manifest injustice.
11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark
Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).