McWilliams v. Dunn (INMATE 3)
ORDER directing as follows: (1) petitioner's 10 Objections to Report and Recommendation is OVERRULED; (2) the 9 Report and Recommendation of the Magistrate Judge is ADOPTED; and (3) Petitioner Emanuel McWilliams's petition for writ of habeas corpus is DISMISSED under 28 U.S.C. 2244(b)(3)(A) for Petitioner's failure to obtain the requisite order from the Eleventh Circuit authorizing the consideration of a successive habeas petition. Signed by Chief Judge William Keith Watkins on 7/23/15. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JEFFERSON S. DUNN,
CASE NO. 2:15-CV-379-WKW
On June 16, 2015, the Magistrate Judge filed a Recommendation (Doc. # 9),
to which Petitioner Emanuel McWilliams has filed a timely Objection (Doc. # 10).
Upon an independent and de novo review of those portions of the
Recommendation to which objection is made, the Objection is due to be overruled,
the Recommendation is due to be adopted, and Mr. McWilliams’s petition for writ
of habeas corpus is due to be dismissed.
Mr. McWilliams filed the present habeas petition to challenge the sentence
of life without the possibility of parole he received for a crime he committed when
he was a juvenile. He argues that his sentence should be vacated in light of Miller
v. Alabama, 132 S. Ct. 2455, 2469 (2012), in which the Supreme Court held that
imposition of mandatory life sentences without the possibility of parole for
juvenile offenders sentenced as adults violates the Eighth Amendment.
Magistrate Judge did not reach the merits of Mr. McWilliams’s challenge because
he determined that Mr. McWilliams had failed to obtain the requisite order from
the Eleventh Circuit authorizing the district court to consider a successive habeas
petition, leaving the court without jurisdiction.
Mr. McWilliams objects to the Recommendation of the Magistrate Judge. In
his Objection, Mr. McWilliams does not argue that his present petition is not
successive for purposes of triggering the requirements of 28 U.S.C. §
Nor does he contend that he has received the requisite
authorization from the Eleventh Circuit. Rather, Mr. McWilliams argues that this
action should be stayed pending the Supreme Court’s determination in
Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), on grounds that Montgomery
will determine whether the holding in Miller should be applied retroactively.
While this court acknowledges the import of the forthcoming decision in
Montgomery, its pendency does not confer jurisdiction upon this court to entertain
Mr. McWilliams’s petition. As the Supreme Court has explained, failing to adhere
to § 2244(b)(3)’s “gatekeeping provisions” deprives district courts of jurisdiction
to entertain habeas petitions.
Burton v. Stewart, 549 U.S. 147, 152 (2007).
Accordingly, this court echoes the determination of the Eleventh Circuit that
dismissal of the present petition “does not preclude” Mr. McWilliams from seeking
leave from the Eleventh Circuit to file a new, successive petition “after the
Supreme Court decides Montgomery.” In re McWilliams, No. 15-12377-E (11th
Cir. June 25, 2015).
Accordingly, it is ORDERED as follows:
Petitioner Emanuel McWilliams’s Objection (Doc. # 10) is
the Recommendation (Doc. # 9) is ADOPTED; and
Petitioner Emanuel McWilliams’s petition for writ of habeas corpus is
DISMISSED under 28 U.S.C. § 2244(b)(3)(A) for Petitioner’s failure to obtain the
requisite order from the Eleventh Circuit authorizing the consideration of a
successive habeas petition.
A final judgment will be entered separately.
DONE this 23rd day of July, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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