Martin v. Gordy (INMATE 3)

Filing 6

ORDER as follows: 1. Mr. Martin's 5 Objection is OVERRULED. 2. The 4 Recommendation is ADOPTED. 3. The 1 Petition for Writ of Habeas Corpus is DENIED. 4. This cause of action is DISMISSED without prejudice under 28 U.S.C. § 2244(b)(3) (A) as Mr. Martin has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application. A final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 2/12/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
SILAS MARTIN, # 145 609,
Petitioner,
v.
CHRISTOPHER GORDY, et al.,
Respondents.

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CASE NO. 3:14-CV-1261-WKW
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[WO]
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ORDER

On January 22, 2015, the Magistrate Judge filed a Recommendation in this
case. (Doc. # 4.) On February 4, 2015, Petitioner Silas Martin filed an objection
to the Recommendation. (Doc. # 5.) After an independent and de novo review of
those portions of the Recommendation to which objection is made, the court finds
that Mr. Martin’s objection is due to be overruled and the Recommendation
adopted. See 28 U.S.C. § 636(b).
Mr. Martin filed this 28 U.S.C. § 2254 petition challenging his state-court
conviction for attempted sodomy in the second degree entered by the Circuit Court
of Lee County, Alabama, on December 20, 2014. This is not Mr. Martin’s first
§ 2254 challenge. In September 2009, Mr. Martin filed a previous petition for
habeas corpus relief under § 2254. Martin v. Hetzel, No. 3:09-CV-875-ID (M.D.
Ala. Sept. 14, 2009). As the Magistrate Judge highlighted in her Recommendation,
Mr. Martin’s previous collateral attack was dismissed with prejudice in 2011.

Because this is Mr. Martin’s second § 2254 petition, the Magistrate Judge
determined that § 2244(b)(3)(A) applies, requiring Mr. Martin to first receive
approval from a three-judge panel of the Eleventh Circuit Court of Appeals
“authorizing the district court to consider” a second or successive § 2254 petition.
28 U.S.C. § 2244(b)(3)(A). In his objection to the Recommendation, Mr. Martin
argues that his petition does not constitute a “second or successive collateral
attack” because it is based on newly discovered evidence and information. (Doc.
# 5.)

Section 2244(b)(3)(A) is triggered, however, regardless of whether an

individual’s second § 2254 petition is based on a previously submitted claim or on
newly discovered evidence. See 28 U.S.C. § 2255(h). Accordingly, because Mr.
Martin has not applied for or received an order from a three-judge panel of the
Eleventh Circuit Court of Appeals, this court lacks jurisdiction to consider his
second petition for habeas corpus relief.
Accordingly, it is ORDERED as follows:
1.

Mr. Martin’s objection (Doc. # 5) is OVERRULED.

2.

The Recommendation (Doc. # 4) is ADOPTED.

3.

The petition for writ of habeas corpus is DENIED.

4.

This cause of action is DISMISSED without prejudice under 28

U.S.C. § 2244(b)(3)(A) as Mr. Martin has failed to obtain the requisite order from

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the Eleventh Circuit Court of Appeals authorizing this court to consider his
successive habeas application.
A final judgment will be entered separately.
DONE this 12th day of February, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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