Lee v. Givens

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 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.^[1] Doc. # 1.^[2]

         Lee 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.^[3] Id.

         For the 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.

         II. DISCUSSION

         This 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.

         Lee 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.

         Lee 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.

         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)].”^[4] 28 U.S.C. § 2244(b)(3)(B) & (C).

         Lee's 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 934.

         III. CONCLUSION

         Accordingly, 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 ...