Lee v. Giles et al (INMATE 2)

Filing 5

REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) The 28 USC 2254 Petition for Habeas Corpus relief filed by Petitioner on 3/19/2009 be DENIED; 2) This cause of action be DISMISSED in accordance with the provisions of 28 USC 2244(b)(3)(A) as Petitioner 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; Objections to R&R due by 4/9/2009. Signed by Honorable Charles S. Coody on 3/27/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ RASHAD CORTEZ LEE, #213 823 Petitioner, v. J.C. GILES, WARDEN et al., Respondents. _____________________________ * * * * * 2:09-CV-234-TMH (WO)

RECOMMENDATION OF THE MAGISTRATE JUDGE This case is pending before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed on March 19, 2009 by Rashad Lee, a state inmate presently incarcerated at the Ventress Correctional Facility.1 In this action, Petitioner challenges his conviction for intentional murder/first degree murder imposed upon him by the Circuit Court for Bullock County, Alabama, on November 2, 2000. Petitioner is serving a life sentence for this conviction.

Although the Clerk of this court stamped the present petition "filed" on March 23, 2009, Petitioner signed the brief in support of his petition on March 19, 2009. The law is well settled that a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (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). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition and accompanying documents] was delivered to prison authorities the day [Lee] signed [them] . . . " Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers March 19, 2009 as the date of filing.

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DISCUSSION A review of the records of this court indicates that Petitioner filed a previous habeas corpus petition under 28 U.S.C. § 2254 challenging his 2000 murder conviction. Petitioner filed the previous habeas petition on September 30, 2005. See Lee v. Mitchem, et al., Civil Action No. 2:05-CV-968-WKW (M.D. Ala. 2006). In that prior action, the court denied Petitioner relief from his Bullock County murder conviction finding his habeas application to be time-barred under 28 U.S.C. §2244(d). (Id. at Doc. No. 22.) Pursuant to the provisions of 28 U.S.C. § 2244(b)(3)(A), "[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." "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 threejudge panel of the court of appeals" and may be granted "only if [the assigned panel of judges] 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 Petitioner that he has not received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to consider a successive application for habeas relief. "Because this undertaking [is

Petitioner's] second habeas 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

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grant the requested relief." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). Consequently, the present petition for habeas corpus relief is due to be denied and this case summarily dismissed. Id. at 934. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The 28 U.S.C. § 2254 petition for habeas corpus relief filed by filed by Petitioner on March 19, 2009 be DENIED. 2. This cause of action be DISMISSED in accordance with the provisions of 28 U.S.C. § 2244(b)(3)(A) as Petitioner 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. It is further ORDERED that on or before April 9, 2009 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from

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attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done, this 27th day of March 2009. /s/ Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

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