Opinion
Civil Action No. 1:15cv24-WKW (WO)
01-22-2015
WILLIE C. MCCRAY, # 183709, Petitioner, v. KENNETH JONES, et al., Respondents.
RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This case is before the court on a pro se petition for writ of habeas corpus by a person in state custody, see 28 U.S.C. § 2254, filed by Willie C. McCray ("McCray"). Doc. No. 1. McCray challenges the convictions for felony murder and theft entered against him by the Circuit Court of Houston County, Alabama, on October 34, 2000. The trial court sentenced McCray to 99 years in prison.
McCray filed this petition in the United States District Court for the Northern District of Alabama, which, on December 23, 2014, transferred the petition to this court under28 U.S.C. § 2241(d). See Doc. No. 4.
II. DISCUSSION
The records of this court indicate that in December 2006 McCray filed a previous petition for habeas corpus relief under 28 U.S.C. § 2254 challenging the same felony murder and theft convictions entered against him in 2000 by the Circuit Court of Houston County. See McCray v. Thomas, et al., Civil Action No. 1:06cv1107-WKW, Doc. No. 1. In that previous habeas action, this court denied McCray relief and dismissed the case with prejudice on the ground that McCray failed to file the § 2254 petition within the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). See id., Doc. Nos. 52-54.
The dismissal of a § 2254 petition for tardiness under § 2244(d) qualifies as an adjudication on the merits for purposes of successive-petition rules and renders future challenges to the same conviction under § 2254 "second or successive" and subject to the requirements of 28 U.S.C. § 2244(b)(1) through (4). Murray v. Greiner, 394 F.3d 78. 79 (2d Cir. 2005); see also, e.g., Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003).
Under 28 U.S.C. § 2244(b)(3)(A), "[b]efore 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)(3)(A). "A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals" and may be granted "only if [the assigned panel of judges] determines that the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)(1) or (b)(2)]." 28 U.S.C. § 2244(b)(3)(B) & (C).
Section 2244(b)(1) provides:
A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
It does not appear from the pleadings that McCray has received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to consider his successive application for federal habeas relief. "Because this undertaking [is a successive] habeas corpus petition and because [McCray] had no permission from [the Eleventh Circuit] to file a [successive] habeas petition, ... the district court lack[s] jurisdiction to grant the requested relief." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). Consequently, the instant petition for writ of habeas corpus should be denied and this case summarily dismissed. Id. at 934.
III. CONCLUSION
Accordingly, it is the RECOMMENDATION of the undersigned Magistrate Judge that:
1. The petition for writ of habeas corpus filed by McCray be DENIED.
2. This cause of action be DISMISSED under 28 U.S.C. § 2244(b)(3)(A) as McCray has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application.
It is further
ORDERED that on or before February 5, 2015, the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised this Recommendation is not a final order; therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
DONE, this 22nd day of January, 2015.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
28 U.S.C. § 2244(b)(1). Section 2244(b)(2) provides: 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. 28 U.S.C. § 2244(b)(2).