Dixon v. Davis, et al

Filing 47

ORDER denying 45 Motion to Reopen Case; denying 46 application to Proceed without Prepayment of Fees. Signed by Honorable Ira De Ment on 1/19/2010. (jg, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA OF E A S T E R N DIVISION T H O M A S EDWARD DIXON, # 163115, P e titio n e r, v. L E O N E A L DAVIS, et al., R e sp o n d e n ts . ) ) ) ) ) ) ) )

C A S E NO. 3:93-CV-663 (WO)

ORDER
T h is case is presently before the Court on a Motion to Reopen Case (Doc. # 45), w h ic h Petitioner filed in letter form on January 8, 2010, and an Application to Proceed W ith o u t Prepayment of Fees and Affidavit (Doc. # 46),which Petitioner filed the same day. For the reasons set forth below, the Motion and Application are due to be DENIED. P e titio n e r was originally convicted---wrongly he claims---of the murder of his wife in the courts of the State of Alabama. He has been incarcerated on those charges for over tw e n ty years, and has steadfastly maintained his innocence. As part of his efforts to have his c o n v ic tio n overturned, he filed a Petition for a Writ of Habeas Corpus with this Court in M a y , 1993. See Dixon v. Davis, 3:93-CV-663-ID. After a nearly two-year long course of p ro c e e d in g s , this Court in April, 1995, denied Petitioner's petition and dismissed his case w ith prejudice. Petitioner then attempted to appeal the dismissal, but was unsuccessful. He h a s now moved this Court to reopen his prior habeas case and allow him to proceed without p re p a y m e n t of fees. Petitioner's 1993 habeas corpus case is closed and proceed to a final and binding

judgment. There is no procedure available at this juncture and in these circumstances that w o u ld allow the Court to reopen his case. Petitioner is not without recourse, however. If he w is h e s to press his claims of innocence using the writ of habeas corpus, he must comply with th e strictures of 28 U.S.C. § 2244, which governs successive habeas petitions. In addition to meeting the requirements of 28 U.S.C. § 2244(b)(2),1 Petitioner must "move in the [E le v e n th Circuit] court of appeals for an order authorizing the district court to consider the a p p lic a tio n ." Id. § 2244(b)(3)(A). Therefore, if Petitioner wishes to continue to pursue his c la im s of innocence, he must first move in the Eleventh Circuit Court of Appeals for an order a u th o riz in g this Court to consider the application. Until the Eleventh Circuit issues such an o rd e r, this Court is powerless to consider Petitioner's claims of innocence in the context of a habeas corpus proceeding. Therefore, it is CONSIDERED and ORDERED that the Motion to Reopen Case (Doc. # 45) and the Application to Proceed without Prepayment of Fees (D o c . # 46) be and the same are hereby DENIED. DONE this the 19th day of January, 2009. /s/ Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE

1

That subsection provides:

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.