United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker, United States Magistrate Judge.
the court is Alabama inmate Willie Pickett's pro
se petition for writ of habeas corpus under 28 U.S.C.
§ 2254, in which Pickett challenges (1) his August 1987
conviction for first-degree rape following a jury trial in
the Montgomery County Circuit Court, and (2) his September
1987 convictions for child abuse and interference with
custody pursuant to guilty pleas entered in the Montgomery
County Circuit Court. Doc. No. 1. Pickett was sentenced as a
habitual offender to life in prison for the rape conviction
and to concurrent terms of 20 years in prison for the child
abuse and interference-with-custody convictions. In his
petition, Pickett asserts that his convictions were obtained
as the result of his unlawful arrest and extradition in 1987.
Id. at 5-7. According to Pickett, no arrest warrant
supported by a sworn affidavit was ever issued against him.
Id. Pickett also claims that he is being held
unlawfully by the Alabama Department of Corrections
(“ADOC”) because the Montgomery County Circuit
Court “dismissed” the charges against him in May
2013 after he filed a Rule 32 petition in that court.
Id. at 1, 5 & 15. As discussed below,
Pickett's claim that the charges against him have been
dismissed is without merit. As further discussed, the court
recommends that Pickett's § 2254 petition be
dismissed as a successive petition filed without the required
appellate court authorization.
claims that his incarceration by ADOC is illegal because, he
says, the Montgomery County Circuit Court
“dismissed” the charges against him in May 2013
after he filed a Rule 32 petition in that court. Doc. No. 1
at 1, 5 & 15. Pickett states that he did not
“discover” this information until October 2017.
Id. at 1.
his § 2254 petition, Pickett submits a copy of a case
action summary sheet related to a Rule 32 petition
challenging his rape conviction that he filed in the
Montgomery County Circuit Court in March 2013. Doc. 1-1.
Pickett highlights an entry on the case action summary sheet
that indicates: “CHARGE 01 DISPOSED BY: DISMISSED ON
05/02/2013.” Id. at 1. A review of the
document submitted by Pickett, however, indicates that
“CHARGE 01” refers to the Rule 32 petition filed
by Pickett, not the criminal charges for which he was
convicted, and that the Rule 32 petition was dismissed by the
trial court on May 2, 2013. Id. at 1; see also
id. at 3 (indicating “CHARGE 01: RULE 32-FELONY. .
.”). This is borne out by reference to records on
Alacourt, Alabama's online access to public trial court
records, which establish that a Rule 32 petition filed by
Pickett on March 25, 2013, was summarily dismissed by the
trial court on May 2, 2013, on grounds that the petition was
untimely under Rule 32.2(c) of the Alabama Rules of Criminal
Procedure.See Docket of Montgomery County
Circuit Court No. CC-1987-1077.67, Documents 3, 6 & 8
(AlacourtACCESS, https://v2.alacourt.com/). The records
reflect that Pickett appealed from the denial of the Rule 32
petition and that, on August 23, 2013, the Alabama Court of
Criminal Appeals affirmed the trial court's judgment in a
memorandum opinion. Id., Document 13.
documents submitted by Pickett and Alacourt records make it
clear that, contrary to Pickett's claim, the charges
against Pickett were not dismissed by an order of the
Montgomery County Circuit Court in May 2013. The order of
dismissal to which Pickett points as support for his claim
is, as stated above, an order by the trial court dismissing
as untimely Pickett's Rule 32 petition attacking his rape
conviction. Pickett's claim is frivolous and has no basis
in fact; therefore, it can afford him no relief.
Pickett's § 2254 Petition is Successive
has previously filed separate § 2254 petitions
challenging his August 1987 conviction for first-degree rape
and his September 1987 convictions for child abuse and
interference with custody. The § 2254 petition attacking
Pickett's child abuse conviction was filed on February
22, 1991. See Pickett v. Nagle, Civil Action No.
2:91cv171-MHT. The claims in that petition were adjudicated
adversely to Pickett, and on December 1, 1993, this court
entered a final judgment denying the petition and dismissing
the case with prejudice. See Doc. No. 8-2. The
§ 2254 petition attacking Pickett's conviction for
interference with custody likewise was filed on February 22,
1991. See Pickett v. Nagle, Civil Action No.
2:91cv176-MHT. The claims in that petition were adjudicated
adversely to Pickett and, on December 1, 1993, this court
entered a final judgment denying the petition and dismissing
the case with prejudice. See Doc. No. 8-2. The §
2254 petition attacking Pickett's conviction for
first-degree rape was filed on November 18, 1998. See
Pickett v. Davis, Civil Action No. 2:98cv1296-ID. The
claims in that petition were adjudicated adversely to Pickett
and, on March 18, 1999, this court entered a final judgment
denying the petition and dismissing the case with prejudice.
See Doc. No. 8-1.
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)].” 28 U.S.C. §
2244(b)(3)(B) & (C).
instant § 2254 petition is successive as to the §
2254 petitions he filed in Civil Action No. 2:91cv171-MHT,
Civil Action No. 2:91cv176-MHT, and Civil Action No.
2:98cv1296-ID. Those earlier § 2254 petitions-which
collectively attacked the same three convictions Pickett
challenges in his instant § 2254 petition-were
adjudicated adversely to Pickett and were all dismissed with
prejudice. Pickett furnishes no certification from the
Eleventh Circuit Court of Appeals authorizing this court to
proceed on his successive petition. “Because this
undertaking [is a successive] habeas corpus petition and
because [Pickett] 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
it is the RECOMMENDATION of the Magistrate Judge that
Pickett's petition for writ of habeas corpus under 28
U.S.C. § 2254 be DISMISSED for want of jurisdiction, as
Pickett has failed to obtain the requisite order from the
Eleventh Circuit Court of Appeals ...