United States District Court, S.D. Alabama, Southern Division
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
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