Presley v. Dunn

Filing 6

MEMORANDUM OPINION. Signed by Judge James H Hancock on 11/16/2015. (JLC)

FILED
2015 Nov-16 AM 10:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARCUS PRESLEY,

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Petitioner,
v.
JEFFERSON S. DUNN,
Respondent.

Case No. 2:15-cv-01461-JHH-TMP

MEMORANDUM OPINION
This is an action by an Alabama state prisoner pursuant to 28 U.S.C. § 2254,
challenging the constitutional validity of the conviction he received for capital
murder-robbery. Marcus Presley (“Petitioner”) was convicted in the Shelby County
Circuit Court on September 27, 1997. Petitioner filed his current petition for writ of
habeas corpus on August 25, 2015. He is confined at the Donaldson Correctional
Facility in Bessemer, Alabama.

PROCEDURAL HISTORY
The petitioner was convicted of capital murder-robbery following a jury trial
in the Shelby County Circuit Court on September 27, 1997. He was sixteen years old
at the time of the offense. Originally, the petitioner was sentenced to death. The

Alabama Court of Criminal Appeals affirmed the conviction and original sentence in
a published opinion dated January 15, 1999. The Alabama Supreme Court affirmed
by published opinion on January 28, 2000. The petitioner filed a petition for postconviction relief in the trial court, which was dismissed on May 26, 2005. On June
21, 2005, the trial court vacated the petitioner’s death sentence pursuant to Roper v.
Simmons, 543 U.S. 551, and he was sentenced to life without parole. On August 11,
2006, the Alabama Court of Criminal Appeals affirmed the trial court’s dismissal of
the petition for collateral relief, and the Alabama Supreme Court denied his petition
for writ of certiorari on October 13, 2006.
The petitioner filed his first petition for habeas corpus in this court on October
16, 2006. The case was styled as Presley v. Allen, Case No. 2:06-cv-02075-LSCTMP. The magistrate judge filed his Report and Recommendation on August 9,
2007, recommending that the petition be dismissed with prejudice. The Report and
Recommendation was adopted, and the habeas petition was dismissed by the district
court on August 29, 2007.
The petitioner filed the instant petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 in this court on August 25, 2015. (Doc. 1). The petition challenges
the same conviction and sentence that was challenged by his first habeas petition.
Along with the petition, the petitioner filed a Notice of his filing an application with
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the Eleventh Circuit Court of Appeals for leave to file a second or successive habeas
petition. Pursuant to the Notice, the court issued an Order staying the case. On
September 14, 2015, the Eleventh Circuit denied the petitioner’s application to file
a second or successive habeas petition as well as his motion to stay the proceedings.
The Eleventh Circuit provided a copy of the Order to this court. (Doc. 5).

DISCUSSION
Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) made several changes in the law relating to habeas corpus
procedure. One of the changes was an amendment to 28 U.S.C. § 2244(b) that added
the following provision:
(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.

The clear effect of this provision is to establish a statutory precondition to the filing
of a “second or successive” habeas petition, requiring the applicant to obtain the
authorization of the United States Court of Appeals for the Eleventh Circuit before
the petition is filed in the district court. The purpose of the statute is to prevent the
filing of successive petitions and to deprive the district court of jurisdiction to
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consider successive petitions unless and until it has been authorized by the
appropriate court of appeals.
The Eleventh Circuit, by statute, is the court to determine whether the
petitioner has asserted a claim for which successive habeas application is permitted.
The Eleventh Circuit, if it determines in the affirmative, may grant Petitioner leave
to file a successive habeas claim with this court, and grant this court leave to consider
it. If the petitioner is not authorized by the Eleventh Circuit to file his successive
habeas petition, this court, according to the terms of the statute, does not have
jurisdiction to consider the petition. In the instant case, the Eleventh Circuit has
denied the petitioner’s application to file a second or successive petition. (Doc. 5).
Accordingly, this court is without jurisdiction to adjudicate the petitioner’s claim, and
the petition is due to be dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A). A final
order will be entered contemporaneously herewith.
DONE this the 16th day of November, 2015.

______________________________

SENIOR UNITED STATES DISTRICT JUDGE

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