Carr v. Holt et al (INMATE 2)

Filing 3

RECOMMENDATION of the Magistrate Judge that the 1 Petition for Writ of Habeas Corpus filed by Terry Leon Carr be dismissed as this court is without jurisdiction to review the instant petitioner. Objections to R&R due by 10/10/2006. Signed by Judge Delores R. Boyd on 9/28/06. (sl, )

Carr v. Holt et al (INMATE 2)

Doc. 3

Case 3:06-cv-00844-MEF-DRB

Document 3

Filed 09/28/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A ST E R N DIVISION __________________________________ T E R R Y LEON CARR, #142 607 P e t i t io n e r , v. AR N O L D M. HOLT, WARDEN, et al., R e s p o n d e n ts . __________________________________ * * * * * 3:06-CV-844-MEF (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P e titio n e r, Terry Carr, is currently confined at the Bullock Correctional Facility lo c a te d in Union Springs, Alabama. He files in this court an application seeking the issuance o f a writ of habeas corpus. He seeks once again to challenge his 1985 conviction for murder e n te re d against him by the Circuit Court for Lee County, Alabama. Petitioner is serving a life sentence for this conviction. (Doc. No. 1.)

T h e instant petition represents another attempt by Petitioner at challenging his 1985 c o n vic tio n . Petitioner's most recent federal habeas petition, filed on June 20, 2006, was d en ied and dismissed as successive on June 30, 2006. See Carr v. State of Alabama, Civil A c tio n No. 3:06-CV-547-MHT (M.D. Ala. 2006); see also Carr v. Holt, Civil Action No. 3 :0 3 -C V -9 6 6 -W H A (M.D. Ala. 2003); Carr v. DeLoach, Civil Action No. 3:96-CV-1133W H A (M.D. Ala. 1996); Carr v. DeLoach, Civil Action No. 3:94-CV-366-ID (M.D. Ala.1 9 9 4 ).

Dockets.Justia.com

Case 3:06-cv-00844-MEF-DRB

Document 3

Filed 09/28/2006

Page 2 of 4

D IS C U S S IO N P e titio n e r may file a second or successive habeas corpus petition only if he has moved th e appropriate circuit court for an order authorizing the district court to consider his ap p lica tio n . See 28 U.S.C. § 2244(b)(3);1 Felker v. Turpin, 83 F.3d 1303, 1305-07 (11 th C ir. 1996). The pending application is a successive one. Before this court may consider the p e n d in g petition, the United States Court of Appeals for the Eleventh Circuit must enter an o rd e r authorizing this court to consider Petitioner's application for habeas corpus relief. 28 U .S.C . § 2244(b)(3)(A).2 It is clear from the petition filed in this case that Petitioner has not received an order fr o m the Eleventh Circuit Court of Appeals authorizing this court to consider his successive a p p lic a tio n for habeas corpus relief. "Because this undertaking would be [a successive] h a b e a s corpus petition and because [Petitioner] ha[s] no permission from [the Eleventh C irc u it] to file a second habeas petition, . . . the district court lack[s] jurisdiction to grant the re q u e ste d relief." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11 th C ir. 2001). In light of the foregoing, it is clear that this court lacks jurisdiction to consider 28 U.S.C. § 2244(b)(3)(B) provides, as amended, that: "[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 three-judge panel of the court of appeals."
1

28 U.S.C. § 2244(b)(3)(A) provides that "[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." (emphasis added).

2

2

Case 3:06-cv-00844-MEF-DRB

Document 3

Filed 09/28/2006

Page 3 of 4

P e titio n e r's successive petition for habeas corpus relief and it is, therefore, due to be s u m m a rily dismissed.3 C O N C L U SIO N A c co rd in gly , it is the RECOMMENDATION of the Magistrate Judge that the a p p lica tio n for habeas corpus relief filed by Petitioner Terry Carr be DISMISSED as this c o u rt is without jurisdiction to review the instant petition. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R ec o m m en d atio n on or before October 10, 2006. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party is objecting. F r ivo lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the M a g i s tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in gs in the report accepted or adopted by the District Court except upon grounds of plain

Under the amendments to 28 U.S.C. § 2254, a second or successive petition must be certified as provided in § 2244 by a panel of the appropriate court of appeals to contain--(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

3

3

Case 3:06-cv-00844-MEF-DRB

Document 3

Filed 09/28/2006

Page 4 of 4

error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on Se p te m b e r 30, 1981. D o n e , this 28 th day of September 2006.

/s / Delores R. Boyd DELORES R. BOYD U N IT E D STATES MAGISTRATE JUDGE