Walker v. State of Alabama (INMATE3)

Filing 4

REPORT AND RECOMMENDATIONS; that the 28 U.S.C. § 2254 petition for habeas corpus relief filed by filed by Walker on February 14, 2010, be DENIED; that this cause of action be DISMISSED in accordance with the provisions of 28 U.S.C. § 2244(b )(3)(A), as Walker has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing a federal district court to consider his successive habeas application; Granting 2 Application to Proceed Without Prepayment of Fees and Affidavit filed by Neil Walker; Objections to R&R due by 3/8/2010. Signed by Honorable Wallace Capel, Jr on 2/22/2010. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION N E IL WALKER, # 095197, Petitioner, v. S T A T E OF ALABAMA, et al., Respondents. ) ) ) ) ) ) ) ) )

Civil Action No. 1:10cv124-TMH (W O )

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is case is before the court on a pro se 28 U.S.C. § 2254 petition for habeas corpus re lie f filed on February 14, 2010, by Neil Walker ("Walker"), a state prisoner who challenges h is 1994 conviction for murder entered against him by the Circuit Court for Houston County, A la b a m a .1 D IS C U S S IO N A review of this court's records indicates that on November 27, 2001, Walker filed a previous habeas petition pursuant to the provisions of 28 U.S.C. § 2254 challenging the s a m e 1994 murder conviction that he challenges by his current petition. See Walker v. State o f Alabama, et al., Civil Action No. 1:01cv1383-MEF. In that prior habeas action, this court d e n ie d Walker relief and dismissed his petition with prejudice. Id. at Doc. Nos. 71 & 74.

Although his petition (Doc. No. 1) is date-stamped "received" in this court on February 17, 2010, Walker represents that he signed the petition on February 14, 2010. Thus, February 14, 2010, is deemed the date of filing. See Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). Walker's motion for leave to proceed in forma pauperis (Doc. No. 2) is GRANTED.

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T h e final judgment was entered by the district court on April 4, 2003. Id. at Doc. No. 75. P u r s u a n t to the provisions of 28 U.S.C. § 2244(b)(3)(A), "[b]efore a second or s u c c es s iv e application permitted by this section is filed in the district court, the applicant sh a ll move in the appropriate court of appeals for an order authorizing the district court to c o n sid e r the application." "A motion in the court of appeals for an order authorizing the d is tric t court to consider a second or successive application shall be determined by a threeju d g e panel of the court of appeals" and may be granted "only if [the assigned panel of ju d g e s] determines that the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)(2)]." 28 U.S.C. § 2244(b)(3)(B) and (C). It is clear from the pleadings filed by Walker that he has not received an order from a threejud g e panel of the Eleventh Circuit Court of Appeals authorizing this court to consider a s u c c e s s iv e application for habeas relief. "Because this undertaking [is Walker's] second h a b e a s corpus petition and because he had no permission from [the Eleventh Circuit] to file a second habeas petition, ... the district court lack[s] jurisdiction to grant the requested re lie f ." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11 th Cir. 2001). C o n s e q u e n tly, the present petition for habeas corpus relief is due to be denied and this case s u m m a rily dismissed. Id. at 934. C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the undersigned Magistrate Judge th a t:

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1 . The 28 U.S.C. § 2254 petition for habeas corpus relief filed by filed by Walker on F e b ru a ry 14, 2010, be DENIED. 2 . This cause of action be DISMISSED in accordance with the provisions of 28 U .S .C . § 2244(b)(3)(A), as Walker has failed to obtain the requisite order from the Eleventh C irc u it Court of Appeals authorizing a federal district court to consider his successive habeas a p p li c a ti o n . It is further ORDERED that on or before March 8, 2010, the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is t r i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed

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d o w n prior to the close of business on September 30, 1981. D o n e this 22 n d day of February, 2010.

/s/Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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