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Robertson v. Cooks

United States District Court, S.D. Alabama, Southern Division

July 18, 2019

RONALD WAYNE ROBERTSON, # 241992, Petitioner,
v.
WARDEN COOKS, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Ronald Wayne Robertson, a state inmate in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and 28 U.S.C. § 2241 (Docs. 1, 4). This action has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R), and Rule 8 of the Rules Governing Section 2254 Cases.[1] Because the case is in the early stages, no response has been filed to the petition. Upon careful consideration, it is recommended that Robertson's habeas corpus petitions be DISMISSED as successive under 28 U.S.C. § 2244(b)(3)(A).

         I. BACKGROUND

         On May 18, 2005, following a jury trial, Petitioner Robertson was convicted in the Circuit Court of Mobile County, Alabama of first-degree rape and first-degree sexual abuse.[2] Wayne Robertson v. Richard Allen, No. 2:10-cv-00375-CG-C (S.D. Ala. 2010) (“Robertson I”), ECF No. 12-1 at 51-52. On July 15, 2005, he was adjudged guilty and sentenced to life imprisonment for the rape and a consecutive ten-year term of imprisonment for the sexual abuse. ECF No. 12-1 at 4. The Alabama Court of Criminal Appeals affirmed Robertson's convictions and sentences by memorandum opinion entered on May 19, 2006. ECF No. 12-6. The Court of Criminal Appeals denied Robertson's application for rehearing on June 20, 2006 and issued a certificate of judgment on August 11, 2006. ECF No. 12-7. Robertson filed a Rule 32 petition seeking collateral relief in the Circuit Court of Mobile County on December 4, 2008, which, after an evidentiary hearing was held, was denied as time-barred and also on the merits. ECF No. 12-1 at 17-25, 58-63. Robertson filed a notice of appeal on July 28, 2009, and on March 19, 2010, the Court of Criminal Appeals affirmed the denial of Robertson's Rule 32 petition. ECF No. 12-1 at 64; ECF No. 12-4. Robertson's petition for writ of certiorari to the Supreme Court of Alabama was denied on June 18, 2010, and a certificate of judgment was issued on the same date. Ex parte Robertson, 83 So.3d 595 (Ala. 2010); Robertson I, ECF No. 12-5.

         Thereafter, on July 15, 2010, Robertson filed his first federal habeas petition attacking his conviction and sentence in this Court. ECF No. 1. In his petition, Robertson claimed that (1) his trial attorney provided constitutionally ineffective assistance, and (2) the trial court deprived him of his “right to appeal” because the court did not allow him to make a showing of actual innocence of rape during the Rule 32 evidentiary hearing. ECF No. 1 at 13-15. On March 18, 2011, Robertson's petition was dismissed as time-barred pursuant to 28 U.S.C. § 2244(d). ECF Nos. 16, 19, 20. Robertson filed a notice of appeal, which the Eleventh Circuit Court of Appeals also construed as a motion for a certificate of appealability. ECF Nos. 23, 26. On July 1, 2011, the Eleventh Circuit issued an order denying Robertson's motion for a certificate of appealability because his habeas petition was “plainly barred by 28 U.S.C. § 2254's one-year statute of limitations.” ECF No. 26. Robertson filed a motion for reconsideration, which the Eleventh Circuit denied on August 29, 2011. ECF No. 27.

         On July 9, 2019, Robertson filed the instant petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (Doc. 1) and petition for writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 4). Both petitions were docketed in the instant case under the same case number. Robertson essentially makes the same four claims in both petitions, namely that (1) the State withheld discovery containing exculpatory evidence; (2) the address where the crimes allegedly occurred was “fabricated” because Robertson had moved away from that address years before the alleged crimes; (3) the evidence was insufficient to convict him because there was no DNA evidence and “the case was done only on hearsay, ” and (4) that the alleged victim perjured herself at trial with the State's knowledge.[3] (See Doc. 1 at 6-8, 13; Doc. 4 at 2, 6-8). For the reasons set forth below, the Court finds that Robertson's petitions are due to be dismissed as successive.

         II. DISCUSSION

         As an initial matter, Robertson has simultaneously filed form petitions for a writ of habeas corpus under both 28 U.S.C. § 2254 and 28 U.S.C. § 2241 in this case. (Docs. 1, 4). However, as detailed above, Robertson is essentially making the same claims and seeking the same relief[4] in both petitions. Further, because Robertson is challenging his state convictions and is in custody under the judgment of an Alabama court, 28 U.S.C. § 2254 applies to both of his petitions despite his use of a form § 2241 petition. See Peoples v. Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004) (per curiam) (“[T]here is but one means of bringing a post-conviction petition for those imprisoned under a State court judgment, and that is the writ of habeas corpus which is governed by both § 2241 and § 2254.”). A state prisoner trying to obtain relief from his conviction or sentence cannot evade the procedural requirements of 28 U.S.C. § 2254 by filing a petition purporting to be something else. See Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004) (“A state prisoner cannot evade the procedural requirements of § 2254 by filing something purporting to be a § 2241 petition.”). Although § 2241 authorizes a habeas corpus remedy for state court prisoners challenging the execution of a sentence, rather than the validity of the sentence itself, see Bishop v. Reno, 210 F.3d 1295, 1304, n.14 (11th Cir. 2000); Tackett v. United States, 2019 U.S. Dist. LEXIS 2441, at *18, 2019 WL 121264, at *7 (N.D. Ala. Jan. 7, 2019), a § 2241 petition is subject to the same restrictions as a § 2254 petition. Peoples, 393 F.3d at 1353. These restrictions include a one-year statute of limitations, see 28 U.S.C. § 2244(d)(1); a certificate of appealability requirement, see 28 U.S.C. § 2253(c); and strict limits on filing a second or successive § 2254 petitions, see 28 U.S.C. § 2244(b).

         As noted above, one of the statutory restrictions on § 2254 habeas petitions arises from 28 U.S.C. § 2244(b), which provides in relevant part that:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...

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