United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
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. 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. Â§ 2244(b)(3)(A).
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. 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.
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.
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. (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
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 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.
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
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(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 ...