Howard v. Bolling et al
Filing
6
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 10/12/17. (SAC )
FILED
2017 Oct-12 PM 04:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
MICHAEL LAMAR HOWARD,
Petitioner
vs.
LEON BOLLING, III, Warden, and
THE ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:17-cv-01460-KOB-HNJ
MEMORANDUM OPINION
On August 30, 2017, the magistrate judge entered a report recommending that
the court dismiss the petition pursuant to 28 U.S.C. § 2244(b)(2) or, in the alternative,
pursuant to 28 U.S.C. § 2244(b)(3)(A) because the petitioner has already filed a habeas
petition and did not obtain the necessary authorization from the Eleventh Circuit to file
this one.
(Doc. 4).
On September 6, 2017, petitioner filed objections to the
magistrate judge’s report and recommendation. (Doc. 5).
In his objections, the petitioner basically restates the same grounds found in his
petition, but does not address the specific findings of the magistrate judge. Therefore,
the court OVERRULES all of his objections.
1
After careful de novo review of the record in this case, including the magistrate
judge’s report and recommendation and the petitioner’s objections, the court ADOPTS
the report of the magistrate judge and ACCEPTS his recommendation to dismiss the
habeas petition.
The court specifically finds that this court lacks jurisdiction to consider this
“second or successive” petition because the Eleventh Circuit has not certified it as
required by 28 U.S.C. § 2244(b)(3)(A). See McCallum v. McDonough, 257 F. App’x 157, 159
(11th Cir. 2007) (“A district court lacks jurisdiction to consider a ‘second or successive’
habeas corpus petition that has not been previously authorized by an appellate court.”)
(citing Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997)).
Alternatively, the petitioner has not made the requisite showing under 28 U.S.C.
§ 2244(b)(2) to avoid dismissal of any claims not previously raised.
The court will enter a separate order in conformity with this Memorandum
Opinion.
DONE and ORDERED this 12th day of October, 2017.
____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?