United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.
Petitioner
Willie Kevin Williams, 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). Also pending are Williams's
motion to amend his petition (Doc. 6) and the motion to
appoint counsel (Doc. 8). Under S.D. Ala. GenLR 72(b),
Williams' habeas petition and related motions have 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 Williams'
superseding habeas petition (Doc. 1) is due to be
DISMISSED for lack of jurisdiction as an
unauthorized second or successive petition, and that
consequently his pending motions (Docs. 6, 8) are due to be
found MOOT.
I.
Second or Successive Habeas Petition
Williams'
petition challenges a criminal judgment entered against him
by the Circuit Court of Mobile County, Alabama, in September
13, 2012, on his convictions for first-degree rape and
robbery along with second-degree kidnapping. However, the
docket of this Court reflects that Williams already filed a
habeas petition in 2012, 2013 and in 2015 challenging that
conviction. (See Willie Kevin Williams v. Gary Hetzel
et.al, S.D. Ala. No. 1:12-cv-00693-KD-C, Willie
Kevin Williams v. Willie Thomas, S.D. Ala. No.
1:13-cv-00386-CG-M and Willie Kevin Williams v. Willie
Thomas, et.al., S.D. Ala. No. 1:15-cv- 00048-CG-M). The
record in Williams' 2012 habeas case reflects that his
petition there was dismissed without prejudice based upon
Williams failure to prosecute the action and comply with the
Court's orders. The record in Williams' 2013 habeas
case reflects that judgement was entered in favor of the
Respondent, Willie Thomas. Additionally, it was ordered that
Williams be denied any certificate of appealability and not
entitled to appeal in forma pauperis. In 2015, the
habeas case reflects that the writ was denied and the action
was dismissed. Judgment was entered in favor of the
respondent and Williams was denied any further certificate of
appealability. The record does not reflect that any appeal
was taken in Williams' 2012, 2013 habeas cases, however
in Williams' 2015 case, the record reflects that a motion
for a certificate of appealability was filed.[1] The motion was
denied by the U.S. District Court of Appeals for the Eleventh
Circuit and remanded back to this Court. (Doc. 38). Thus, the
habeas petition in this action (Doc. 1) is a second or
successive petition challenging his 2012 criminal
judgment.[2]
“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 Williams 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 Williams' present habeas
petition (Doc. 1) is due to be DISMISSED for
lack of jurisdiction as an unauthorized second or successive
petition and that his pending motion to amend complaint (Doc.
6) and motion to appoint counsel (Doc. 8) are therefore
MOOT.[3]
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 ...