Peterson v. Hetzel, et al (INMATE 3)

Filing 16

ORDER OVERRULING 15 Objection to 14 Report and Recommendation; ADOPTING 14 Report and Recommendation of the Magistrate Judge; ORDERING as follows: (1) To the extent Peterson challenges the sentence for his Alabama felony-murder conviction, t his action is DISMISSED under 28 U.S.C. § 2244(b)(3)(A), as Peterson has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application; (2) To the extent Pe terson challenges his Alabama conviction for second-degree burglary, this action is DISMISSED with prejudice, as Peterson failed to submit his claims challenging the conviction within the one-year limitation period set out in 28 U.S.C. § 2244(d). Signed by Honorable Judge W. Harold Albritton, III on 9/29/14. (djy, )

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

CHARLES LOUIS PETERSON,
Petitioner,
vs.
GARY HETZEL, et al,
Respondents.

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CASE NO. 2:12-cv-391-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #14)
and Petitioner’s objection thereto (Doc. #15). Following an independent evaluation and de novo
review of the file in this case, the court finds the objection to be without merit, and it is hereby
OVERRULED.
Peterson objects to the Magistrate Judge’s Recommendation finding his 2254 petition to
be either successive or time-barred, depending on which of two state convictions he was seeking
to challenge by his petition - one for felony murder or one for second-degree burglary.
In his objection, Peterson insists he was challenging his prior conviction and sentence for
felony murder, but that the Recommendation failed to address his claims as to that conviction
and sentence.

Notwithstanding Peterson's objection, the felony murder conviction (and

sentence) was one of the two convictions addressed by the Magistrate Judge in his
Recommendation. See Recommendation, Doc. No. 14 at pp. 2-4. As to that conviction, the
Recommendation found Peterson's 2254 petition was a successive petition filed without Eleventh
Circuit permission. A footnote in the Recommendation points out that Peterson even raised an

identical argument as to that conviction and sentence in his prior 2254 petition. See
Recommendation at p. 2 n.3.
Peterson's objection is therefore meritless, and his 2254 petition is successive as to his
felony murder conviction and sentence.
Therefore, the court ADOPTS the Recommendation of the Magistrate Judge, and it is
hereby ORDERED as follows:
1. To the extent Peterson challenges the sentence for his Alabama felony-murder
conviction, this action is DISMISSED under 28 U.S.C. § 2244(b)(3)(A), as Peterson has failed to
obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to
consider his successive habeas application.
2. To the extent Peterson challenges his Alabama conviction for second-degree burglary,
this action is DISMISSED with prejudice, as Peterson failed to submit his claims challenging the
conviction within the one-year limitation period set out in 28 U.S.C. § 2244(d).
DONE this 29th day of September, 2014.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE