Stoudemire v. Giles et al (INMATE 2)

Filing 4

REPORT AND RECOMMENDATIONS of the Mag Judge that the 1 application for Writ of Habeas Corpus relief be DISMISSED as this court is without jurisdiction to review the instant petition; Objections to R&R due by 1/24/2007. Signed by Judge Charles S. Coody on 1/11/07. (djy, )

Stoudemire v. Giles et al (INMATE 2)

Doc. 4

Case 2:06-cv-01153-MEF-CSC

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Filed 01/11/2007

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION __________________________________ C H U C K STOUDEMIRE, #153 319 P e t i t io n e r , v. W A R D E N GILES, et al., * * * * 2:06-CV-1153-MEF (WO)

R e sp o n d e n t. * __________________________________

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P e titio n e r , Chuck Stoudemire ["Stoudemire"], is currently confined at the Ventress C o rre c tio n a l Facility in Clayton, Alabama. He files this petition for writ of habeas corpus s e e k in g once again to challenge his 1989 conviction for attempted murder entered against h im by the Circuit Court for Covington County, Alabama. Petitioner is serving a 25-year te rm of imprisonment for his conviction. The instant petition represents Stoudemire's second attempt at challenging the merits o f his 1989 conviction. By order filed June 3, 1994 this court denied and dismissed on the m e rits Stoudemire's first application for habeas corpus relief in which he challenged his 1989 a t t e m p te d murder conviction. See Stoudemire v. Nagle, Civil Action No. 2:93-CV-369T M H (M.D. Ala. 1994). D IS C U S S IO N Stoudemire may file a second or successive habeas corpus petition only if he has

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Case 2:06-cv-01153-MEF-CSC

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m o v e d the appropriate circuit court for an order authorizing the district court to consider his a p p lic a tio n . See 28 U.S.C. § 2244(b)(3);1 Felker v. Turpin, 83 F.3d 1303, 1305-07 (11 th C ir. 1996). The pending application is a successive one. Before this court may consider the p e n d in g petition, the United States Court of Appeals for the Eleventh Circuit must enter an o rd e r authorizing this court to consider Stoudemire's application for habeas corpus relief. § 2244(b)(3)(A).2 It is clear from the petition filed in this case that Stoudemire has not received an order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive application for habeas corpus relief. "Because this undertaking would be Stoudemire's second habeas corpus petition and because he ha[s] no permission from [the Eleventh Circuit] to file a second habeas petition, . . . the district court lack[s] jurisdiction to grant the requested relief." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). In light of the foregoing, it is clear that this court lacks jurisdiction to consider Stoudemire's successive petition for habeas corpus relief and it is, therefore, due to be summarily dismissed.3

28 U.S.C. § 2244(b)(3)(B) provides, as amended, that: "[A] motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals." 28 U.S.C. § 2244(b)(3)(A) provides that "[b]efore 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." (emphasis added). Under the amendments to 28 U.S.C. § 2254, a second or successive petition must be certified as provided in § 2244 by a panel of the appropriate court of appeals to contain--(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish
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C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the a p p lica tio n for habeas corpus relief be DISMISSED as this court is without jurisdiction to re v ie w the instant petition. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before January 24, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party is objecting. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain erro r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the

by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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decisions of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e this 11 th day of January, 2007.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE