United States District Court, M.D. Alabama, Northern Division
RASHAD C. LEE, # 213823, Petitioner,
GWENDOLYN GIVENS, et al., Respondents.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
case is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by
state inmate Rashad C. Lee (“Lee”) on June 1,
2019. Doc. # 1.
seeks the vacatur of his 2000 Bullock County guilty plea
conviction for murder, for which he was sentenced to life in
prison. He argues that the prosecution breached a plea
agreement not to protest his eligibility for parole when he
otherwise would have been granted parole at his parole-review
hearings, the most recent of which was in November 2018.
See Doc. # 1 at 5 & 12; Doc. # 1-1 at 1. He
maintains that before he pled guilty in 2000, both the
prosecution and his trial counsel assured him that the
prosecutor's office would not protest his eligibility for
parole when he came up for parole consideration. Doc. # 1-1
at 1. According to Lee, during his November 2018 parole
hearing, he learned that the prosecution had submitted a
letter protesting his parole eligibility at that hearing and
at his previous parole-review hearings. Id. He
contends that the prosecution's failure to keep its
promise not to protest his parole eligibility renders his
guilty plea involuntary. Id.
reasons that follow, it is the recommendation of the
Magistrate Judge that Lee's § 2254 petition be
dismissed as a successive petition filed without the required
appellate court authorization.
court's records reflect that Lee has filed several prior
petitions for habeas corpus relief under 28 U.S.C. §
2254 challenging his murder conviction and life sentence. Lee
filed the first such § 2254 petition in this court on
September 30, 2005. See Lee v. Mitchem, Civil Action
No. 2:05cv968-WKW (M.D. Ala. 2006). In that action, this
court denied Lee relief and dismissed his claims with
prejudice, finding his petition to be time-barred under 28
U.S.C. §2244(d). Id., Docs. # 22, 26 & 27.
filed a second § 2254 petition in this court challenging
his murder conviction and life sentence on March 19, 2009.
See Lee v. Giles, Civil Action No. 2:09cv234-TMH
(M.D. Ala. 2009). This court dismissed that petition under
the provisions of 28 U.S.C. § 2244(b)(3)(A), because it
constituted a second or successive habeas petition filed
without the required authorization from the Eleventh Circuit
Court of Appeals. Id., Docs. # 5, 12 & 13.
filed a third habeas petition in this court on July 22, 2013.
See Lee v. Estes, Civil Action No. 2:13cv797-WHA
(M.D. Ala. 2013). Although Lee styled that petition as one
for relief under 28 U.S.C. § 2241, this court construed
the petition as one filed under § 2254, because it
attacked Lee's murder conviction and life sentence. The
court then dismissed that petition under the provisions of
§ 2244(b)(3)(A), because it constituted a successive
habeas petition filed without the required authorization of
the Eleventh Circuit Court of Appeals. Id., Docs. #
3, 5 & 6.
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 a successive petition
challenge to his 2000 conviction and sentence and is
therefore subject to the limitations of § 2244(b). Lee
furnishes no certification from the Eleventh Circuit Court of
Appeals authorizing this court to proceed on his successive
petition for habeas corpus relief. “Because this
undertaking [is a successive] habeas corpus petition and
because [Lee] 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, this
case is due to be summarily dismissed. See id. at
it is the RECOMMENDATION of the Magistrate Judge that
Lee's § 2254 petition for writ of habeas corpus be
DISMISSED for lack of jurisdiction, because it is a
successive petition filed without the required authorization