Johnson v. Richie et al (INMATE 3)

Filing 4

ORDER ADOPTING adopting in part and MODIFYING in part 2 Report and Recommendation of the Magistrate Judge, and this case is DISMISSED without prejudice in accordance with the provisions of 28 U.S.C. 2244(b)(3)(A) because Mr. Johnson 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, as further set out in order. Signed by Chief Judge William Keith Watkins on 7/10/18. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
BERNARD JOHNSON,
# 216638,
Petitioner,
v.
PATRICE RICHIE, Warden,
STEVEN T. MARSHALL,
Attorney General of the State of
Alabama, and the STATE OF
ALABAMA,
Respondents.

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CASE NO. 1:18-CV-575-WKW
[WO]

ORDER
On June 21, 2018, the Magistrate Judge filed a Recommendation (Doc. # 2),
to which Petitioner Bernard Johnson has timely objected (Doc. # 3). Mr. Johnson
objects to the Magistrate Judge’s characterization of his habeas corpus application
as a second or successive petition subject to the limitations of 28 U.S.C. § 2244(b).
Relying on Insignares v. Secretary, Florida Department of Corrections, 755 F.3d
1273, 1278 (11th Cir. 2014), Mr. Johnson contends that his present application
challenges a different judgment than did his previous petitions and is therefore not
a “second or successive” application. But unlike the petitioner in Insignares, who
was re-sentenced and thus subject to a new judgment, see 755 F.3d at 1278, Mr.

Johnson’s alleged “new judgment” is the denial by the Alabama state court of his
Rule 32 post-conviction petition. Thus, the underlying conviction and sentence
that Mr. Johnson seeks to attack in his present petition are the same ones he
challenged in his state-court Rule 32 motion and the same ones he has challenged
in this court twice before. (See Doc. # 2, at 2.)
Accordingly, it is ORDERED that the Recommendation is ADOPTED in
part and MODIFIED in part, and that this case is DISMISSED without prejudice in
accordance with the provisions of 28 U.S.C. § 2244(b)(3)(A) because Mr. Johnson
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.
See Burton v. Stewart, 549 U.S. 147, 157 (2007) (explaining that the requirements
of 28 U.S.C. § 2244(b) are jurisdictional in nature); Stalley ex rel. U.S. v. Orlando
Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1235 (11th Cir. 2008) (holding that a
court lacking jurisdiction should issue a dismissal without prejudice).
Final judgment will be entered separately.
DONE this 10th day of July, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE