United States District Court, M.D. Alabama, Northern Division
HAROLD ALBRITTON SENIOR UNTIED STATE DISTRICT JUDGE.
case is before the court on the Report and Recommendation of
the Magistrate Judge (Doc. #4) and the Petitioner's
Objection thereto (Doc. #5).
an independent evaluation and de novo review of the
file in this case, the court finds the Objection to be
without merit and due to be overruled.
Objection, Petitioner argues that his § 2254 petition is
not successive because, he says, it does not challenge his
1981 conviction and sentence (which he has challenged in
numerous previous habeas petitions), but instead
“challenges the ‘arbitrary, capricious, and
punitive in nature denial of his “Early Release on
Parole” as required by statute.'” Doc. # 5 at
ground for relief listed in Petitioner's instant §
2254 petition was “Erroneous and Arbitrary denial of
reduction of sentence to Life imprisonment and the
‘Early Release on Parole.'” Doc. # 1 at 6.
Petitioner's supporting facts for this claim concerned
the trial court's denial(s) of his “Kirby
Motion(s)” seeking a sentence reduction under §
13A-5-9.1 of the Ala. Code. Id. Petitioner's
only argument in support of this claim was that the trial
court, at his 1981 sentencing, improperly relied on his 1970
armed robbery conviction in sentencing him as a habitual
offender because the 1970 conviction was
‘uncertified'” and “has never been
‘formally' introduced into evidence as required by
law.” Id. Consequently, the Magistrate
Judge's Recommendation correctly states: “Although
couched in terms of challenging the denial of his motion, or
motions, for reduction of sentence under § 13A-5-9.1,
Petitioner's claim really constitutes an attack on his
1981 life-without-parole sentence.” Doc. # 4 at 2.
Petitioner has filed numerous previous habeas petitions
attacking his 1981 conviction and sentence, making his
instant petition successive. Petitioner's insistence that
his latest petition is really a challenge to the
“arbitrary, capricious, and punitive in nature denial
of his ‘Early Release on Parole' as required by
statute” does not keep his petition from being a
successive attack on the sentence imposed in 1981.
Petitioner's instant petition is deemed to attack only
the trial court's denial of his motions for sentence
reduction under § 13A-5-9.1, and even if this attack is
deemed not successive, the Magistrate Judge's
Recommendation correctly observes 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. See Doc. # 4
at 2, n.1, citing Curry v. Culliver, 141 Fed.Appx.
832, 834 (11th Cir. 2005). Indeed, the Eleventh Circuit said
so in an order denying a certificate of appealability in an
appeal by Petitioner from the dismissal of one of his
previous habeas challenges to the trial court's denial of
his motion for sentence reduction under § 13A-5-9.1.
See Malloy v. Davenport, 2:13cv784-WHA, Doc. # 37 at
Thus, even if Petitioner's instant petition is not
successive, he may not obtain federal habeas relief from the
state court's denial of his motions for sentence
reduction under § 13A-5-9.1.
the Objection (Doc. # 5) is OVERRULED, the court ADOPTS the
Recommendation of the Magistrate Judge (Doc. # 4), the
Petition for Habeas Corpus Relief (Doc. # 1) is DENIED, and
it is hereby ORDERED that this case is DISMISSED.
 Section 13A-5-9.1 provides a means for
a defendant sentenced to life without parole under
Alabama's habitual offender statute to move for a
sentence reduction, where certain requirements are met, via a
so called “Kirby motion.” See Kirby
v. State, 899 So.2d 968 (Ala. 2004); Holt v.
State, 960 So.2d 726, 73435 (Ala.Crim.App.2006).
 In that same order, the Eleventh
Circuit also indicated that it considers a habeas challenge
to the denial of a motion for sentence reduction under §
13A-5-9.1 as an attack on the original sentence that is
subject to AEDPA's successive petition rules. See
Malloy v. Davenport, 2:13cv784-WHA, Doc. # 37 at 3-4
(“[Malloy] challenged his sentence by arguing that he
was entitled to a sentence reduction. Because Malloy
challenged his underlying conviction and sentence,
Malloy's petition was ‘second or successive,'
and the district court should have dismissed it in its
entirety for lack of jurisdiction because he failed to obtain
the requisite authorization from this ...