McLeod v. Culliver (INMATE 3)

Filing 17

ORDER denying 16 Motion to Amend/Correct; denying 16 Motion for Evidentiary Hearing. Signed by Honorable Charles S. Coody on 8/25/09. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION J A C K IE McLEOD, # 116274-A, P e t i t io n e r , v GRANTT CULLIVER, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) )

Civil Action No. 1:09cv634-ID (WO)

ORDER ON MOTION P e titio n e r has filed a motion to amend his petition for writ of habeas corpus. (Doc. N o . 16) Fed.R.Civ.P. 15(a) instructs that leave of the court to amend pleadings "shall be f re e ly given when justice so requires." Nevertheless, a motion to amend may be denied on " n u m e r o u s grounds, such as undue delay, undue prejudice to the defendants, and futility of th e amendment." Maynard v. Bd. of Regents of Universities of Fla. Dept. of Educ., 342 F.3d 1 2 8 1 , 1287 (11 th Cir. 2003) (citations and internal quotation marks omitted; emphasis added). T h e court's records indicate that Petitioner has filed a previous habeas petition p u rs u a n t to the provisions of 28 U.S.C. § 2254 challenging the same convictions and s e n te n c e s he challenges in his present petition. McLeod v. Sutton, et al., Civil Action Nos. 1 :9 5 c v 1 1 8 1 & 1:95cv1219 (M.D. Ala. Oct. 24, 1996). In that previous habeas action, this court determined Petitioner's petition was due to be denied because he procedurally defaulted o n each of his claims for relief and failed to show cause and prejudice or a fundamental m is c a rr ia g e of justice excusing his procedural default. See Civil Action No. 1:95cv1181 -

D o c . Nos. 31 & 33. It is clear from the instant pleadings filed by Petitioner that he has not received an o rd e r from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this c o u rt to consider a successive application for habeas relief. Because this undertaking is a s u c c es s iv e habeas corpus petition and because Petitioner has no permission from the E le v e n th Circuit to file a successive habeas petition, this court lacks jurisdiction to grant any re lie f . See Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11 th Cir. 2 0 0 1 ); Hill v. Hopper, 112 F.3d 1088, 1089 (11 th Cir. 1997). Thus, Petitioner's attempted a m e n d m e n t is futile as a matter of law. Accordingly, it is O R D E R E D that the motion to amend (Doc. No. 16) be and is hereby DENIED. It is further O R D E R E D that the motion for an evidentiary hearing contained in Petitioner's instant p le a d in g (Doc. No. 16) is DENIED. D o n e this 25 th day of August, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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