Williams v. Oliver

          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 ...