Opinion
Case No. 8:11-cv-1784-T-17EAJ.
August 11, 2011
ORDER
This cause is before the Court on Jimmy Lee Smiley's filing which he identified as a 42 U.S.C. § 1983 complaint, but which is, in essence, a 28 U.S.C. § 2254 petition for writ of habeas corpus because Smiley seeks as part of his relief: I want the Defendant to vacate and remand with directions for a new trial, and evidentiary hearing. In addition, Plaintiff complains about his attorney's ineffectiveness, his defense of voluntary intoxication, his attorney's improperly calling him to testify, and the trial court's demeanor. The filing is a rambling hodge podge of claims and complaints which the Court construes as a 28 U.S.C. § 2254 petition for writ of habeas corpus.
Plaintiff/Petitioner challenges his state convictions for attempted murder, robbery, and attempted sexual battery, for which he is serving a term of imprisonment of thirty-eight years. A review of this Court's records reflects that this Court previously entered an order denying a petition filed by Petitioner seeking habeas relief with regard to these same state-court convictions because that initial petition was time-barred and that the Eleventh Circuit Court of Appeals dismissed his appeal from this order. This Court's records further reveal that two other district judges denied subsequent petitions challenging the same state-court convictions as successive.
See case number 8:07-cv-2209-T-26TBM, dockets 21, 32, and 33.
See case numbers 8:10-cv-370-T-30TBM and 8:11-cv-504-T-26AEP.
Consequently, because Petitioner filed the instant construed petition without first obtaining authorization from the Eleventh Circuit as required by 28 U.S.C. § 2244(b)(e)(A), this latest construed petition is also due to be dismissed as successive.
Accordingly, the Court orders:
1. That the construed petition for writ of habeas corpus is dismissed for lack of jurisdiction.
2. That the motion to proceed in forma pauperis (Doc. 2) is denied as moot.
3. That Plaintiff may file a 42 U.S.C. § 1983 complaint ON THE FORM raising any claims other than habeas claims.
The Clerk is directed to enter judgment for Respondents and to close this case. The Clerk is directed to send Plaintiff a form for filing a civil rights case.
ORDERED at Tampa, Florida.