Opinion
CIVIL ACTION 00-0537-CB-M
September 1, 2000
Dennis W. Stewart, Holman Correctional Facility, Atmore, AL
Cedric B. Colvin, Esq. Office of the Attorney General State of Alabama, Montgomery, AL.
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that this habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Charlie Jones and against Petitioner Dennis W. Stewart on all claims.
Petitioner was convicted of first degree robbery in the Circuit Court of Mobile County on June 16, 1985 for which he received a sentence of life without parole in the state penitentiary. Appeal was made to the Alabama Court of Criminal Appeals which apparently affirmed the conviction and sentence (Doc. 1, p. 3; Doc. 6, pp. 1-2). Petitioner filed a complaint with this Court on June 14, 2000, raising the following claims: (1) The prosecutor breached the plea agreement; (2) the conviction was obtained by use of a coerced confession; (3) the conviction violated the Double Jeopardy Clause; and (4) Petitioner was denied the effective assistance of counsel (Doc. 1).
Respondent has argued that this action should be dismissed because this Court's review is barred without a certificate from the Eleventh Circuit pursuant to 28 U.S.C. § 2244(b) as Stewart has previously filed a federal habeas petition (Doc. 6, p. 4). The statute to which Respondent refers states the following: "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)(3)(A).
The Court first notes that Petitioner admitted in his habeas petition that he had previously filed another habeas petition on this same conviction (Doc. 1, p. 10, ¶ 12). Court records indicate that Petitioner did, in fact, file a petition with this Court which was denied and dismissed on January 3, 1990 by District Court Judge Charles R. Butler. Stewart v. Johnson, Civil Action 87-1288-CB-C (S.D. Ala. January 3, 1990).
Because Petitioner filed his second habeas petition here, though he should have first sought authorization with the Eleventh Circuit Court of Appeals, this Court, has several avenues on which to proceed. The Court could stay this action so that Petitioner could seek the required authorization; the Court could transfer the action to the Eleventh Circuit. The Court of Appeals has noted the possibility of these two avenues though it declined to hold that either was the appropriate remedy. See Guenther v. Halt, 173 F.3d 1328 (11th Cir. 1999), cert. denied, 120 S.Ct. 811 (2000).
The Court also has a third avenue which will be recommended in this action. That option is to dismiss this action and allow Stewart to pursue the required authorization if he still wishes to do so. This course of action is recommended because the Court reads the statutory language to mean that this Court does not have jurisdiction to entertain this action without the prerequisite authorization. Guenther also suggested this possibility though, again, that Court did not hold that dismissal was its preference. Guenther, 173 F.3d at 1330.
Therefore, it is recommended that this habeas petition be dismissed as this Court does not have jurisdiction to review it.