United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE.
McCoy, a state inmate in the custody of Respondents, has
petitioned this Court for federal habeas corpus relief
pursuant to 28 U.S.C. § 2254. (Doc. 1). 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(b) of
the Rules Governing Section 2254 Cases. Based upon a
careful review of McCoy's petition and the Court's
records,  it is recommended that McCoy's habeas
corpus petition be DISMISSED as successive
under 28 U.S.C. § 2244(b)(3)(A).
McCoy's third federal habeas petition arising from his
August 24, 2005 conviction for first-degree rape in the
Circuit Court of Monroe County, Alabama. McCoy filed his
first federal habeas petition under 28 U.S.C. § 2254 on
November 10, 2010. In the petition, he raised three claims
challenging his 2005 conviction and sentence. See Lamar
McCoy v. Louis Boyd, No. 1:10-cv-00666-CG-M (S.D. Ala.
2010) (“McCoy v. Boyd”), ECF No. 1. On
February 2, 2011, this Court dismissed McCoy's first
habeas petition without prejudice to allow him to exhaust his
state court remedies. Id., ECF No. 4, 14, 15.
14, 2012, McCoy filed his second federal § 2254 habeas
petition in this Court. Lamar McCoy v. Warden
Hetzel, No. 1:12-cv-00326-CG-B (S.D. Ala. 2012), ECF No.
1. In that petition, McCoy once again attacked his 2005
conviction and sentence. The Court dismissed the petition
with prejudice as time-barred on March 18, 2014.
Id., ECF No. 31, 32, 33.
October 1, 2019, McCoy filed the instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
McCoy asserts that his 2005 conviction is illegal and his
sentence void, because neither the magistrate nor the sheriff
signed the warrant for his arrest. (Id. at 5, 13).
For the reasons set forth below, the Court finds that
McCoy's instant § 2254 habeas petition is due to be
dismissed as a successive petition pursuant to 28 U.S.C.
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 have
found the applicant guilty of the underlying offense.
(3) (A) Before 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
28 U.S.C. § 2244(b) (emphasis added); see also
Rule 9 of the Rules Governing Section 2254 Cases
(“Before presenting a second or successive petition,
the petitioner must obtain an order from the appropriate
court of appeals authorizing the district court to consider