McCray v. Cummins et al (INMATE2)

Filing 15

ORDER AND RECOMMENDATION of the Magistrate Judge that: 1) To the extent the instant habeas application represents an attempt to once again challenge Petitioner's 1992 convictions for second degree kidnapping and second degree assault, such claim s are due to be DISMISSED in accordance with the provisions of 28 USC 2244(b)(3)(A) as Petitioner has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing a federal district court to consider his successive habe as application; 2) This case be REFERRED back to the undersigned for further proceedings as directed herein; ORDERED that to the extent Petitioner seeks to challenge a revocation of parole, Respondents shall, on or before 9/3/2009, file an answer in response thereto in accordance with the provisions of the court's 5 Order; Objections to R&R due by 9/3/2009. Signed by Honorable Terry F. Moorer on 8/17/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION _____________________________ R O B E R T L. MCCRAY, #167 644 P e titio n e r, v. J O H N CUMMINS, WARDEN et al., R e s p o n d e n ts . _____________________________ * * * * * 3:09-CV-659-ID (WO)

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h is case is pending before the court on a 28 U.S.C. § 2254 petition for habeas corpus re lie f filed on July 11, 2009 by Robert McCray, a state inmate presently incarcerated at the K ilb y Correctional Facility.1 Petitioner was convicted of second degree assault and second d e g re e kidnapping by the Circuit Court for Macon County, Alabama, on April 13, 1992. DISCUSSION A . The 1992 Convictions A review of the records of this court indicates that Petitioner has filed previous

Although the Clerk of this court stamped the present petition "filed" on July 15, 2009, Petitioner signed the petition on July 11, 2009. The law is well settled that a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [McCray] signed it . . . " Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers July 11, 2009 as the date of filing.

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h a b e a s corpus petitions under 28 U.S.C. § 2254 challenging his 1992 kidnapping and assault co n v ic tio n s . See McCray v. Nagle, et al., Civil Action No. 3:02-CV-724-ID (M.D. Ala. 2 0 0 2 ) (dismissed as a successive petition pursuant to the provisions of 28 U.S.C. § 2 2 4 4 (b )(3 )(A )); McCray v. Mitchum, et al., Civil Action No. 3:99-CV-83-ID (M.D. Ala. 1 9 9 9 ) (dismissed as a successive petition pursuant to the provisions of 28 U.S.C. § 2 2 4 4 (b )(3 )(A )); McCray v. Nagle, et al., Civil Action No. 2:94-CV-756-MHT (M.D. Ala. 1 9 9 6 ) (claims decided adversely to the petitioner on the merits); McCray v. Nagle, et al., C iv il Action No. 3:93-CV-242-ID (M.D. Ala. 1993) (petition dismissed without prejudice f o r petitioner's failure to exhaust available state court remedies). Pursuant to the provisions of 28 U.S.C. § 2244(b)(3)(A), "[b]efore a second or s u c c es s iv e application permitted by this section is filed in the district court, the applicant sh a ll move in the appropriate court of appeals for an order authorizing the district court to c o n sid e r the application." "A motion in the court of appeals for an order authorizing the d is tric t court to consider a second or successive application shall be determined by a threeju d g e panel of the court of appeals" and may be granted "only if [the assigned panel of ju d g e s] determines that the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)(2)]." 28 U.S.C. § 2244(b)(3)(B) and(C). It is clear from the pleadings filed by Petitioner that he has not received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to c o n sid e r a successive application for habeas relief. "Because this undertaking is a successive

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h a b e a s corpus petition and because [Petitioner has] no permission from [the Eleventh Circuit] to file a [successive] 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). Consequently, to the extent the present petition for habeas corpus relief seeks to c h a lle n g e Petitioner's 1992 convictions for second degree assault and second degree k id n a p p in g , such claims are due to be dismissed. Id. at 934. B . The Parole Revocation In his petition and affidavit in support thereof, Petitioner contends that he is being h e ld at Kilby "without conviction or charge; Parole Board violat[ed] affiant in the situation o f void conviction when they ... knew affiant should not have been placed on parole . . " (See D o c . No. 1 at 6, Doc. No. 2 at 1; Doc. No, 10.) Petitioner goes on to assert that he is w rongfully incarcerated and neither the Alabama Department of Corrections nor the Alabama B o a rd of Pardons and Paroles has taken steps to correct the situation but continues to im p ris o n him despite being aware that he is "detained unlawfully void of conviction or c h a rg e ." (Doc. No. 2; see also Doc. No. 3.) To the extent Petitioner, in filing the instant a c tio n , seeks to challenge a revocation of his parole, Respondents shall be directed to file an a n s w e r in response to this claim. II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that; 1 . To the extent the instant habeas application represents an attempt to once again

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c h a lle n g e Petitioner's 1992 convictions for second degree kidnapping and second degree a ss a u l t, such claims are due to be DISMISSED in accordance with the provisions of 28 U .S .C . § 2244(b)(3)(A) as Petitioner has failed to obtain the requisite order from the E lev e n th Circuit Court of Appeals authorizing a federal district court to consider his s u c c es s iv e habeas application; 2 . This case be REFERRED back to the undersigned for further proceedings as d ire c te d herein. It is further O R D E R E D that to the extent Petitioner seeks to challenge a revocation of parole, R e sp o n d e n ts shall, on or before September 3, 2009, file an answer in response thereto in ac co rda n ce with the provisions of the court's July 20, 2009 order. It is further ORDERED that on or before September 3, 2009 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the

M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is 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 advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from 4

a tt a c k i n g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e , this 17 th day of August 2009.

/s /Terry F. Moorer T E R R Y F. MOORER. U N IT E D STATES MAGISTRATE JUDGE.

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