Jones v. Mack

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         Laryie Earl Jones, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). In the petition, Jones once again seeks to challenge his May 25, 2006 possession of cocaine convictions, and the resulting concurrent life sentences, ^[1] out of the Circuit Court of Covington County, ^[2] Alabama. (See Doc. 1, at 2.) This matter has been referred to the undersigned for the entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). It is recommended that the instant petition be dismissed without prejudice due to petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A).

         DISCUSSION

         As reflected above, on May 25, 2006, Jones was convicted, following a jury trial, of three counts of possession of cocaine (see Doc. 1, at 2), and, on July 10, 2006, he was sentenced to concurrent life terms with respect to those possession of cocaine convictions, see, Jones, supra, CA 13-0505-KD-N, Doc. 11, at 2.^[3] After challenging his convictions and sentences in the state courts of Alabama for a number of years, see Jones, supra, Doc. 11, at 2, Jones ultimately filed a § 2254 petition in the United States District Court for the Middle District of Alabama, see Id. at 3, citing Jones v. Boyd, No. 2:08-CV-304-MHT-TFM. Jones' claims were determined to be procedurally defaulted and his federal habeas petition was denied. Compare Id. with Jones v. Boyd, 2010 WL 1874277 (M.D. Ala. Apr. 2, 2010), report and recommendation adopted, 2010 WL 1874189 (M.D. Ala. May 6, 2010).

         On October 15, 2013, Jones filed a successive petition in this Court attacking his possession of cocaine and possession of drug paraphernalia convictions and sentences out of the Circuit Court of Covington County, Alabama. See Jones v. Lightner, supra, Doc. 1, at 9. Jones' successive petition was dismissed without prejudice for lack of jurisdiction, specifically, his failure to comply with 28 U.S.C. § 2244(b)(3)(A). See id., Docs. 13-14; see also id., Doc. 11. This, too, should be the fate of Jones' present habeas corpus action.

         A district court has the power under Rule 4 of the Rules Governing Section 2254 Cases “to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999); see Jackson v. Secretary for the Department of Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002) (“[W]e hold that the district court possessed the discretion to raise sua sponte the timeliness issue.”); Clark v. McLaughlin, 2017 WL 9478488 (N.D.Ga. Oct. 30, 2017) (utilizing Rule 4 to recommend the dismissal of a clearly successive § 2254 petition), report and recommendation adopted, 2017 WL 5736241 (N.D.Ga. Nov. 17, 2017). Rule 4 provides, in pertinent part, that “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” 28 U.S.C. foll. § 2254, Rule 4.

         Pursuant to 28 U.S.C. §§ 2254 and 2244(b)(3)(A), as amended by §§ 105 and 106 of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “‘[b]efore a second or successive application [for a writ of habeas corpus] 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.'” Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999) (quoting 28 U.S.C. § 2244(b)(3)(A)), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). “[T]he petitioner first must obtain an order from the court of appeals authorizing the district court to consider” a second or successive petition because “[w]ithout authorization, the district court lacks jurisdiction to consider [such] second or successive petition.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (citations omitted); see also Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257, 1259 (11th Cir.) (“Section 2244(b)(3)(A) requires a district court to dismiss for lack of jurisdiction a second or successive petition for a writ of habeas corpus unless the petitioner has obtained an order authorizing the district court to consider it.”), cert. denied, 555 U.S. 1161, 129 S.Ct. 1305, 173 L.Ed.2d 483 (2009); Morales v. Florida Department of Corrections, 346 Fed.Appx. 539, 540 (11th Cir. Sept. 29, 2009) (“In order to file a second or successive § 2254 petition, the petitioner must first obtain an order from the court of appeals authorizing the district court to consider it. . . . Absent authorization, the district court lacks jurisdiction to consider a second or successive petition.”), cert. denied, 562 U.S. 866, 131 S.Ct. 156, 178 L.Ed.2d 94 (2010).

         The records retained by this Court indicate that Jones has twice previously filed habeas corpus petitions, pursuant to the provisions of 28 U.S.C. § 2254, challenging the same convictions and sentences he challenges in the instant petition. Compare Jones v. Boyd, supra, with Jones v. Lightner, supra. In Jones v. Boyd, supra, the United States District Court for the Middle District of Alabama determined that Jones' § 2254 petition was due to be denied because he procedurally defaulted each of his claims for relief and failed to establish cause and prejudice (or a fundamental miscarriage of justice) excusing his procedural default(s), ^[4] see Jones v. Boyd, supra, at *7-9, and in Jones v. Lightner, this Court determined that Jones' § 2254 petition was due to be dismissed without prejudice because it was a successive petition over which this Court could exercise no jurisdiction due to Petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A), see Jones v. Lightner, CA 13-0505-KD-N, Docs.11 & 13-14.

         In light of the foregoing, it is clear that the instant petition, filed in this Court on or about January 16, 2019 (see Doc. 1, at 12), is another successive petition, yet there is nothing to indicate that Jones filed an application with the Eleventh Circuit Court of Appeals seeking an order authorizing this Court to consider this petition or that he received such an order from a three judge panel of the Eleventh Circuit Court of Appeals authorizing this Court to consider a successive application for habeas relief. Compare Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“[T]he movant must first file an application with the appropriate court of appeals for an order authorizing the district court to consider it.”) with 28 U.S.C. § 2244(b)(3)(B) & (C) (“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. [] The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”). Because petitioner has not applied to the Eleventh Circuit Court of Appeals for permission to file this his third federal habeas petition, nor been granted leave of that court to file another habeas corpus petition, this Court lacks jurisdiction to consider Jones' request for relief, compare Farris, supra, 333 F.3d at 1216 (“Without authorization, the district court lacks jurisdiction to consider a second or successive petition.”) with Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.) (“Under 28 U.S.C. § 2244(b)(3)(A), the district court lacked jurisdiction to consider Appellant Hill's request for relief because Hill had not applied to this Court for permission to file a second habeas petition.”), cert. denied, 520 U.S. 1203, 117 S.Ct. 1571, 137 L.Ed.2d 714 (1997); see Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932, 933 (11th Cir. 2001) (“Because this undertaking would be [petitioner's] second habeas corpus petition and because he had no permission from us to file a second habeas petition, we conclude that the district court lacked jurisdiction to grant the requested relief.”). Accordingly, this cause is due to be dismissed, without prejudice, for want of jurisdiction pursuant to 28 U.S.C. § 2244(b)(3)(A). Compare Tompkins, supra, 557 F.3d at 1259 (“Section 2244(b)(3)(A) requires a district court to dismiss for lack of jurisdiction a second or successive petition for a writ of habeas corpus unless the petitioner has obtained an order authorizing the district court to consider it.”) with United States v. Holt, supra, 417 F.3d at 1175 (“Without authorization, the district court lacks jurisdiction to consider a second or successive petition.”) and Simmons v. Cummins, 2010 WL 582091, *2 (M.D. Ala. Jan. 15, 2010) (“It is clear from the pleadings filed herein that Simmons has not received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to consider a successive application for habeas relief. ‘Because this undertaking [is Simmons'] second habeas corpus petition and because he had no permission from [the Eleventh Circuit] to file a second habeas petition, . . . the district court lack[s] jurisdiction to grant the requested relief.'”), report and recommendation adopted, 2010 WL 653691 (M.D. Ala. Feb. 17, 2010).^[5]

         Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2254, Rule 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being denied on procedural grounds without reaching the merits of the underlying constitutional claims, “a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.”'”). The instant petition is unquestionably a successive pleading and Jones' first federal habeas petition was dismissed on the merits based on unexcused procedural defaults. A reasonable jurist could not conclude either that this Court is in error in dismissing the instant third petition, without prejudice, for want of jurisdiction or that Jones should be allowed to proceed further. Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”).

         Rule 11(a) further provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” If there is an objection to this recommendation by petitioner, he may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).

         CONCLUSION

         The Magistrate Judge recommends that Laryie Earl Jones' petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be dismissed without prejudice due to petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A). Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.

         NOTICE OF RIGHT ...