Opinion
CASE NO.: 5:15CV00290 SWW/BD
09-17-2015
SHANNON BOYLE ADC #116113 PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
RECOMMENDED DISPOSITION
I. Procedure for Filing Objections
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge Susan Webber Wright. Mr. Boyle - or any party - may file written objections with the Clerk of Court within fourteen (14) days of filing of this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Wright can adopt this Recommendation without independently reviewing the record.
II. Introduction
In April, 2001, a Lonoke County Circuit Court jury found Petitioner Shannon Boyle guilty of aggravated robbery and theft of property. (docket entry #1) Mr. Boyle unsuccessfully challenged his conviction in the state courts before filing a federal habeas corpus petition in May, 2006. Boyle v. Kelley, 5:06CV00117 SWW (E.D.Ark. dismissed Nov. 29, 2006). Judge Wright dismissed the petition with prejudice and declined to issue a certificate of appealability. Mr. Boyle filed a number of subsequent motions for relief in his federal habeas proceeding, all of which Judge Wright denied. On August 3, 2015, the Court of Appeals for the Eighth Circuit denied Mr. Boyle's application for a certificate of appealability and dismissed Mr. Boyle's appeal. Id. at #40.
In the current case, Mr. Boyle has failed to pay the filing fee or move for in forma pauperis status. In addition, the record shows that this is an unauthorized second or successive habeas petition. For this reason, Judge Wright should DENY and DISMISS Mr. Boyle's petition, without prejudice.
III. Discussion
This Court lacks jurisdiction to rehear this challenge to Mr. Boyle's convictions. As noted, Mr. Boyle has already challenged his convictions through a federal habeas petition. Id. Before filing a second or successive habeas corpus petition in federal court, a petitioner must seek and receive an order from the appropriate court of appeals that authorizes the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Authorization is required even where the petitioner claims actual innocence. 28 U.S.C. § 2244(b)(2)(B)(i)-(ii). Without an order from the court of appeals authorizing the filing of a second or successive petition, the district court lacks jurisdiction to hear the petition. Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007). Summary dismissal of a habeas corpus petition - prior to any answer or other pleading being filed by the respondent - is appropriate where the petition itself and court records show that the petition is a second or successive petition filed without authorization from the court of appeals. Rule 4, Rules Governing Habeas Corpus Cases; Blackmon v. Armontrout, 61 Fed.Appx. 985, 985 (8th Cir. 2003).
The court of appeals can authorize the filing of a successive petition only if the new petition satisfies certain statutory requirements. See 28 U.S.C. § 2244(b)(2). --------
The pending petition is clearly "successive" because Mr. Boyle's previous petition challenged the same state conviction. There is nothing in the record to indicate that Mr. Boyle sought and received authorization from the Court of Appeals before filing this successive petition.
Mr. Boyle makes some fairly compelling claims, but has not supported them with any evidence. Even if he had, this Court simply cannot address these claims without the necessary authorization. Without permission from the Court of Appeals, the district court cannot consider this case. 28 U.S.C. § 2244(b)(1)-(3)(A).
IV. Conclusion
The Court recommends that Judge Wright DENY and DISMISS Shannon Boyle's successive petition for writ of habeas corpus, without prejudice, for lack of jurisdiction. The Court further recommends that Judge Wright deny a certificate of appealability.
DATED this 17th day of September, 2015.
/s/_________
UNITED STATES MAGISTRATE JUDGE