Torbert v. Mosley et al (INMATE2)

Filing 2

RECOMMENDATION of the Magistrate Judge that the application for habeas corpus relief filed by Rayshun Torbert be dismissed without prejudice as this court is without jurisdiction to review the instant petition. Objections to R&R due by 6/11/2007. Signed by Judge Terry F. Moorer on 5/30/07. (sl, )

Torbert v. Mosley et al (INMATE2)

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Case 3:07-cv-00460-WKW-TFM

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Filed 05/30/2007

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ R A Y S H U N TORBERT, #198 029 P e t i t io n e r , v. C A R T E R DAVENPORT, WARDEN, et al., R e s p o n d e n ts . _____________________________ * * * * * 2:07-CV-460-WKW (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, Rayshun Torbert, is currently confined at the Easterling Correctional F a c ility in Clio, Alabama. He files this petition for writ of habeas corpus seeking once again to challenge his 1998 conviction for murder entered against him by the Circuit Court for Lee C o u n ty , Alabama. Petitioner is serving a life sentence for his conviction. The instant petition represents Petitioner's second attempt at challenging the merits o f his 1998 conviction. By order filed June 6, 2005 this court denied and dismissed on the m e rits Petitioner's first application for habeas corpus relief in which he challenged his 1998 m u rd e r conviction. See Torbert v. Haley, Civil Action No. 2:02-CV-1385-MEF (M.D. Ala. 2 0 0 5 ). D IS C U S S IO N Petitioner 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

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a p p lic a 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. § 2 2 4 4 ( b ) ( 3 ) ( A ) .2 It is clear from the petition filed in this case that Petitioner has not received an order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive application for habeas corpus relief. "Because this undertaking would be Petitioner's second habeas corpus petition and because he ha[s] no permission from [the Eleventh Circuit] to file a second habeas petition, . . . the district court lack[s] jurisdiction to grant the requested relief." Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). In light of the foregoing, it is clear that this court lacks jurisdiction to consider Petitioner's successive petition for habeas corpus relief and it is, therefore, due to be summarily dismissed.3

28 U.S.C. § 2244(b)(3)(B) provides, as amended, that: "[A] motion in the court of appeals for an o rd e r authorizing the district court to consider a second or successive application shall be determined by a t h r e e - j u d g e panel of the court of appeals."
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28 U.S.C. § 2244(b)(3)(A) provides that "[b]efore a second or successive application permitted

b y this section is filed in the district court, the applicant shall move in the appropriate court of appeals for a n order authorizing the district court to consider the application." (emphasis added).

Under the amendments to 28 U.S.C. § 2254, a second or successive petition must be certified as p r o v i d e d in § 2244 by a panel of the appropriate court of appeals to contain--(1) newly discovered e v id e n c e that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by c le a r and convincing evidence that no reasonable factfinder would have found the movant guilty of the o f f e n s e , or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the S u p r e m e Court, that was previously unavailable.

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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 Magistrate Judge that the a p p lic a tio n for habeas corpus relief filed by Rayshun Torbert be DISMISSED without p re ju d ic e as this court 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 R e c o m m e n d a tio n on or before June 11, 2007. Any objections filed must specifically

id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o 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 is 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 g s in the report accepted or adopted by the District Court except upon grounds of plain e r r o r 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 r ic 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 S e p te m b e r 30, 1981. D o n e , this 30 th day of May 2007. 3

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/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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