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McCoy v. Cooks

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

November 19, 2019

LAMAR MCCOY, # 243521, Petitioner,
v.
MARY COOKS, et al., Respondents.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE.

         Lamar 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.[1] Based upon a careful review of McCoy's petition and the Court's records, [2] it is recommended that McCoy's habeas corpus petition be DISMISSED as successive under 28 U.S.C. § 2244(b)(3)(A).

         I. BACKGROUND

         This is 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.

         On May 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.

         On 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. § 2244(b).

         II. DISCUSSION

         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 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 application.

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 the ...


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