Phillips v. Price et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/20/2016. (AVC)
2016 Jun-20 PM 02:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL ANTONIO PHILLIPS,
WARDEN CHERYL PRICE and THE
ATTORNEY GENERAL FOR THE
STATE OF ALABAMA,
Case Number: 2:15-cv 00028-RDP-JHE
On June 6, 2016, the Magistrate Judge entered a Report and Recommendation (Doc. 14),
recommending that the petition for writ of habeas corpus be dismissed without prejudice to allow
Petitioner to petition the Eleventh Circuit Court of Appeals for authorization to file a successive
petition. Petitioner has filed a document styled, “Objection to Recommendation and Motion for
Arbitration to Compel.” (Doc. 15).
Petitioner argues his petition is not a successive Section 2254 petition, but a new Section
2241 petition for a writ of habeas corpus. (Doc. 15 at 4-5). The court is not persuasive. As the
Magistrate Judge explained:
A state prisoner seeking post-conviction relief from a federal court has one
remedy: an application for a writ of habeas corpus. Medberry v. Crosby, 351 F.3d
1049, 1062 (11th Cir. 2003). All applications for habeas relief are governed by §
2241, which generally authorizes federal courts to grant the writ – to both federal
and state prisoners. Id. Most state prisoners' applications for writs of habeas
corpus are also subject to the additional restrictions of § 2254, including the
requirement regarding successive petitions. Id. If a state prisoner is “in custody
pursuant to the judgment of a State court,” the petition is subject to the
requirements of § 2254. Id. If a prisoner is in prison pursuant to something other
than a judgment of a state court, e.g., a pre-trial bond order, then his petition is not
subject to § 2254. Because Phillips is “in custody pursuant to the judgment of a
State court” and challenging the validity of his conviction and sentence, he is
subject to the requirements of § 2254, regardless of how he styles his petition.
(Doc. 14 at 2-3). Furthermore, not only could Petitioner have raised this claim in his prior
habeas petition, he actually raised it, and the District Court for the Middle District of Alabama
denied his petition with prejudice. (Phillips v. Price, et al., 3:12-cv-00234-WHA-WC (M.D.
Ala), Doc. 1 at 7 & 32); 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior application shall be
Because the court lacks jurisdiction to consider the successive petition, Petitioner’s
motion to compel, (Doc. 12), motion for evidentiary hearing, (Doc. 13) and “motion for
arbitration to compel,” (Doc. 15), are DENIED.
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.
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 without prejudice. A separate Order will
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 and ORDERED this June 20, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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