United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.
I.
INTRODUCTION
This
cause is before the court on Arthur Brennan Malloy's
petition for writ of habeas corpus under 28 U.S.C. §
2254. Doc. # 1. Malloy is serving a sentence of life without
parole as a habitual offender, which was imposed in 1981 upon
his conviction for first-degree robbery after a jury trial in
the Circuit Court of Montgomery County. Malloy challenges the
state trial court's denial of his motion for reduction of
sentence under Ala. Code § 13A-5-9.1. For the reasons
that follow, Malloy's § 2254 petition should be
dismissed as a successive petition filed without the required
appellate court authorization.
II.
DISCUSSION
Malloy
purports to challenge the trial court's denial of his
motion for reduction of sentence under Ala. Code §
13A-5-9.1, which in certain circumstances authorizes the
sentencing judge to modify a sentence of life without parole
to a sentence of life with the possibility of parole. See
Kirby v. State, 899 So.2d 968, 971-72 (Ala. 2004);
Holt v. State, 960 So.2d 726, 734-35
(Ala.Crim.App.2006). Although it is not clear from his
assertions, Malloy appears to challenge both a 2007 ruling
and a 2012 ruling by the trial court denying separate motions
by Malloy seeking relief under § 13A-5-9.1. See
Doc. # 1 at 6. Malloy's only argument in support of his
claim for relief is that the trial court at his 1981
sentencing improperly relied on his 1970 armed robbery
conviction to sentence him as a habitual offender because the
1970 conviction was ‘“unproven' and
‘uncertified'” and “has never been
‘formally' introduced into evidence as required by
law.” Id.
Although
couched in terms of challenging the denial of his motion, or
motions, for reduction of sentence under § 13A-5-9.1,
[1]
Malloy's claim really constitutes an attack on his 1981
life-without-parole sentence. Malloy has filed numerous
previous § 2254 petitions challenging his 1981
conviction and sentence, including a § 2254 petition
filed in 1986, which this court denied with prejudice after
determining that his claims presented therein were meritless.
See Malloy v. Jones, Civil Action No. 2:86cv1160-TMH
(M.D. Ala. 1988).
Under
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)].”[2] 28 U.S.C. §
2244(b)(3)(B) & (C).
Malloy
furnishes no certification from the Eleventh Circuit Court of
Appeals authorizing this court to proceed on his successive
application for habeas relief. “Because this
undertaking [is a successive] habeas corpus petition and
because [Malloy] 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
summarily dismissed.
III.
CONCLUSION
Accordingly,
it is the RECOMMENDATION of the Magistrate Judge that this
cause be DISMISSED under 28 U.S.C. § 2244(b)(3) because
Malloy has failed to obtain the requisite order from the
Eleventh Circuit Court of Appeals authorizing this court to
consider his successive § 2254 petition, and this court
therefore lacks jurisdiction to consider the petition.
It is
further ORDERED that the parties shall file any objections to
this Recommendation on or before April 16, 2019. Any
objections filed must specifically identify the factual
findings and legal conclusions in the Magistrate Judge's
Recommendation to which the parties object. Frivolous,
conclusive or general objections will not be considered by
the District Court. Failure to file written objections to the
proposed findings and recommendations in the Magistrate
Judge's report shall bar a party from a de novo
determination by the District Court of factual findings and
legal issues covered in the report and shall “waive the
right to challenge on appeal the district court's order
based on unobjected to factual and legal conclusions”
except upon grounds of plain error if necessary in the
interests of justice. 11th Cir. R. 3-1; see Resolution
Trust Co. v. Hallmark Builders, Inc., 996 F.2d
1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885
F.2d 790, 794 (11th Cir. 1989).
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Notes:
[1] This court notes that the Eleventh
Circuit has held that entitlement to a sentence reduction
under § 13A-5-9.1 is purely a question of state law for
which federal habeas relief is unavailable. Curry v.
Culliver, ...