Taylor v. Hetzel et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 11/2/15. (SAC )
2015 Nov-02 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHNNY RAY TAYLOR, JR.,
WARDEN GARY HETZEL and THE
ATTORNEY GENERAL FOR THE
STATE OF ALABAMA,
) Case No.: 1:12-cv-03772-WMA-JHE
On October 20, 2015, the magistrate judge entered a Report and
Recommendation, (Doc. 10), finding the petition for a writ of
dismissed without prejudice to allow the petitioner to petition the
Eleventh Circuit Court of Appeals for authorization to file a
objections. (Doc. 13). He contends his petition is not successive
because his prior habeas petition contained a speedy trial claim
only, and did not attack his prior conviction and sentence. (Id.).
He also urges the court to find error in the magistrate judge’s
failure to address his actual innocence claim and equitable tolling
The court has considered the entire file in this action,
together with the report and recommendation, and has reached an
independent conclusion that the report and recommendation is due to
be adopted and approved. The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), effective April 24, 1996, amended 28
U.S.C. § 2244 to read in part:
(b)(3)(A) Before 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.
asserted a speedy trial claim and did not attack his conviction or
sentence, that petition was filed almost six months after the
attempts to assert in this petition were available at that time. If
he wishes to bring another petition in this court, he must obtain
authorization from the United States Court of Appeals for the
Eleventh Circuit before it is filed with the district court. 28
U.S.C. § 2244(b)(3)(A). This court is without jurisdiction to hear
the current petition.
Accordingly, the court hereby adopts and approves the findings
and recommendation of the magistrate judge as the findings and
conclusions of this court. The petition for writ of habeas corpus
is due to be dismissed. Petitioner’s renewed motion to appoint
counsel (Doc. 9) will likewise be denied. A separate order will be
This Court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, a “petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,”
Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotations omitted). This Court finds
Petitioner’s claims do not satisfy either standard.
DONE this 2nd day of November, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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