McLeod v. Culliver (INMATE 3)

Filing 37

ORDERED that on or before 4/6/2011, McLeod shall advise this court whether he seeks to do one of the following: 1) Proceed before this court pursuant to 28 USC § 2254 on those claims presented in his 1 Petition as amended (Doc. No. 29 ); 2) A mend his petition to assert any additional claims pursuant to 28 USC § 2254 on which he wishes to challenge the decision of the Alabama Board of Pardons and Paroles revoking his state parole; or 3) Withdraw his petition. Signed by Honorable Charles S. Coody on 3/16/2011. (wcl, )

-CSC McLeod v. Culliver et al (INMATE 3)

Doc. 37

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION JACKIE McLEOD, # 116274-A, Petitioner, v. GRANTT CULLIVER, et al., Respondents. ) ) ) ) ) ) ) ) ) ORDER On July 25, 2009, the pro se petitioner, Jackie McLeod ("McLeod"), filed a pleading styled as a "2241 Petition for Writ of Habeas Corupus" (Doc. No. 1), in which he contends that the Alabama Board of Pardons and Paroles violated his constitutional rights when revoking his state parole. Because McLeod is in custody pursuant to the judgment of a state court, this court concludes his instant petition, notwithstanding the manner in which it has been styled by McLeod, should be construed as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Medberry v. Crosby, 351 F.3d 1049, 1062 (11 th Cir. 2003). In light of the foregoing, and in compliance with the requirements of Castro v. United States, 540 U.S. 375, 382-83 (2003), the court hereby advises McLeod of its intention to recharacterize his petition as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court cautions McLeod that such recharacterization renders this § 2254 petition and any subsequent § 2254 petition filed with this court susceptible to each of the procedural

Civil Action No. 1:09cv714-ID (WO)

Dockets.Justia.com

limitations imposed upon a § 2254 petition. Specifically, McLeod is cautioned that the instant § 2254 petition and any subsequent § 2254 petition shall be subject to the one-year period of limitation and the successive petition bar applicable to § 2254 petitions.1 In further compliance with the requirements of Castro, supra, it is ORDERED that on or before April 6, 2011, McLeod shall advise this court whether he seeks to do one of the following: 1. Proceed before this court pursuant to 28 U.S.C. § 2254 on those claims presented in his petition (Doc. No. 1) as amended (Doc. No. 29); 2. Amend his petition to assert any additional claims pursuant to 28 U.S.C. § 2254 on which he wishes to challenge the decision of the Alabama Board of Pardons and Paroles revoking his state parole; or 3. Withdraw his petition. McLeod is CAUTIONED that if he fails to file a response in compliance with this order, which requires that he advise the court that he wishes to do one of the above, this cause shall proceed as an action under 28 U.S.C. § 2254, with the court considering only those claims presented in his original petition (Doc. No. 1) as amended (Doc. No. 29).2

"A 1-year period of limitation shall apply to an application [for habeas corpus relief pursuant to 28 U.S.C. § 2254] ." 28 U.S.C. § 2244(d)(1). Further, pursuant to the provisions of 28 U.S.C. § 2244(b)(3)(A), "[b]efore a second or successive application [for habeas corpus relief pursuant to 28 U.S.C. § 2254] ... 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."
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Although the Supreme Court's decision in Castro involved a federal prisoner and 28 U.S.C. (continued...) 2

Done this 16 th day of March, 2011.

/s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

(...continued) § 2255 law, and although neither the Supreme Court nor the Eleventh Circuit has explicitly extended the rule of Castro to § 2254 petitions, it appears that in this circuit the holding and rationale of Castro apply equally to state prisoners and § 2254 law. See Parks v. McNeil, No. 4:07cv493, 2008 WL 4916055 *4 (N.D. Fla. Nov. 12, 2008) (noting that, in the particular case, the Eleventh Circuit, citing Castro, had explained that because the district court recharacterized petitioner's initial filing "without warning him of the potential consequences of such recharacterization or giving him the opportunity to withdraw or amend the document;" the recharacterized petition did not render a subsequent § 2254 petition "second or successive" for purposes of 28 U.S.C. § 2244(b)'s restrictions). 3

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