Calhoun v. Forniss et al (INMATE3)

Filing 9

REPORT AND RECOMMENDATIONS that: (1)The 28 U.S.C. § 2254 petition for habeas corpus relief filed by filed by Calhoun on April 6, 2009, be DENIED; and (2) This cause of action be DISMISSED in accordance with the provisions of 28U.S.C. § 2244 (b)(3)(A), as Calhoun 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 6/1/2009. Signed by Honorable Terry F. Moorer on 5/19/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION DAVID CALHOUN, # 158430, Petitioner, v LEON FORNISS, et al., Respondents. ) ) ) ) ) ) ) ) )

Civil Action No. 2:09cv356-TMH [WO]

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 28 U.S.C. § 2254 petition for habeas corpus relief f ile d on April 6, 2009, by David Calhoun, an Alabama inmate currently incarcerated at Staton C o rre c tio n a l Facility.1 Calhoun challenges a murder conviction entered against him in 1990 b y the Circuit Court for Montgomery County, Alabama, arguing that the court was without ju ris d ic tio n to try him and that his incarceration in state prison is invalid. D IS C U S S IO N A review of the records of this court indicates that on March 20, 1997, Calhoun filed a previous habeas petition pursuant to the provisions of 28 U.S.C. § 2254 challenging the s a m e 1990 murder conviction imposed on him by the Circuit Court for Montgomery County.

Although the present petition is date-stamped "received" on April 20, 2009, Calhoun avers that he signed the petition on April 6, 2009. 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, 271-72 (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). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [Calhoun] signed it...." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

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S e e Calhoun v. Nagle, et al., Civil Action No. 2:97cv378-MHT. In that prior habeas action, t h i s court denied Calhoun relief from the Montgomery County murder conviction and d is m is s e d his petition with prejudice, finding that his claims for relief lacked merit. Id. at D o c . Nos. 71 & 74. 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 si d 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 Calhoun 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 es s iv e application for habeas relief. "Because this undertaking [is Petitioner'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.

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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 undersigned Magistrate Judge th a t: 1 . The 28 U.S.C. § 2254 petition for habeas corpus relief filed by filed by Calhoun o n April 6, 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 Calhoun 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 June 1, 2009, 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 tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

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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 d o w n prior to the close of business on September 30, 1981.

Done this 19th day of May, 2009.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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