United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE.
inmate Joe Henderson commenced this action by filing a
document styled as a “Petition for Writ of Mandamus:
Writ of Prohibition” in the United States District
Court for the Northern District of Alabama. (Doc. 1). On
April 12, 2019, upon finding that Henderson's filing
constituted a petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging his November 1990 conviction
for first-degree robbery in the Elmore County Circuit Court,
the Northern District court entered an order transferring
Henderson's petition to the Middle District of Alabama
for hearing and determination. See (Docs. 4, 5). The
case is now before this court on Henderson's pro
se 28 U.S.C. § 2254 petition.
§ 2254 petition, Henderson presents claims that (1) he
was convicted of an offense, first-degree robbery, not
included in the indictment charging him with capital murder;
(2) he was improperly sentenced as a habitual offender to
serve life in prison without the possibility of parole; and
(3) his lawyer on direct appeal rendered ineffective
assistance of counsel. (Doc. 1) at 1-16. For the reasons that
follow, it is the recommendation of the Magistrate Judge that
Henderson's § 2254 petition be dismissed as a
successive petition filed without the required appellate
challenges his state conviction, and he is in custody under
the judgment of an Alabama court. Therefore, 28 U.S.C. §
2254 applies to his petition whatever his manner of
designation. See Medberry v. Crosby, 351 F.3d 1049,
1054 (11th Cir. 2003); Thomas v. Crosby, 371 F.3d
782, 785 (11th Cir. 2004). A state prisoner cannot evade the
procedural requirements for § 2254 petitions simply by
calling his petition something else. See Thomas, 371
F.3d at 787. This court must apply the procedural
restrictions applicable to § 2254 petitions to
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).
review of this Court's records reveals that Henderson has
filed three previous habeas petitions under 28 U.S.C. §
2254 challenging his November 1990 first-degree robbery
conviction and life-without-parole sentence. See
Henderson v. White, Civil Action No. 2:92cv1343-TMH
(M.D. Ala. 1994); Henderson v. Mitchem, Civil Action
No. 2:03cv559-MHT (M.D. Ala. 2003); Henderson v.
Mitchem, Civil Action No. 2:03cv620-WHA (M.D. Ala.
2003). In Henderson's initial § 2254 action, this
Court determined that his petition was due to be denied and
dismissed with prejudice because Henderson was procedurally
defaulted on each of his claims for relief. See Henderson
v. White, Civil Action No. 2:03cv559-MHT,
supra. This Court dismissed Henderson's second
and third § 2254 petitions under the provisions of 28
U.S.C. § 2244(b)(3)(A) because Henderson had not
obtained an order from the Eleventh Circuit Court of Appeals
authorizing this court to consider his successive
applications for habeas relief. See Henderson v.
Mitchem, Civil Action No. 2:03cv559-MHT, and
Henderson v. Mitchem, Civil Action No.
instant § 2254 petition is a successive petition and is
therefore subject to the limitations of § 2244(b).
Henderson 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 [Henderson]
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.
it is the RECOMMENDATION of the Magistrate Judge that
Henderson's petition for writ of habeas corpus under 28
U.S.C. § 2254 be DISMISSED for want of jurisdiction, as
Henderson has failed to obtain the requisite order from the
Eleventh Circuit Court of Appeals authorizing a federal
district court to consider his successive habeas application.
that on or before June 7, 2019, Petitioner may file
objections to the Recommendation. Petitioner must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made.
Frivolous, conclusive, or general objections will not be
to file a written objection to the Magistrate Judge's
findings and recommendations in accordance with the
provisions of 28 U.S.C. § 636(b)(1) shall bar a party
from a de novo determination by the District Court
of factual and legal issues covered in the Recommendation and
waives the right of a party to challenge on appeal the
District Court's order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court
except upon grounds of plain ...