Evans v. Estes et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/16/2016. (AVC)
2016 Jun-16 PM 02:35
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WARDEN DEWAYNE ESTES and
THE ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Civil Action Number
On May 20, 2016, the magistrate judge entered a report and
recommendation, recommending that the petition for writ of habeas corpus be
dismissed without prejudice. Doc. 5. On June 10, 2016, Petitioner Ronald Evans
filed objections. Doc. 8.
The only issue Evans takes with the magistrate judge’s report and
recommendation is that its “Procedural History” section did not go into detail of
the alleged violations of his constitutional rights in all of the state collateral actions
he has filed challenging his conviction. Id. at 2-10.
The objections do not
challenge any of the magistrate judge’s factual findings or legal conclusions
regarding successiveness. In fact, Evans concludes his objections with a request to
“hold dismissal in abeyance until [he] seeks to obtain permission from the
Eleventh Circuit Court of Appeals to file a successive petition.” Doc. 8 at 10-11.
However, authorization under 28 U.S.C. § 2244(b)(3)(A) must be obtained before
filing a petition and is, therefore, jurisdictional. See Burton v. Stewart, 549 U.S.
147, 153 (2007). To the extent Evans is alleging his petition is based on any new
constitutional violations in his state collateral proceedings, it is still due to be
dismissed. Such claims fail to state a claim for habeas relief because they are an
attack on the fairness of the collateral proceeding and not on the conviction or
Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004).
Accordingly, Evans’s objections are OVERRULED and his request to stay the
petition is 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, along with this memorandum opinion, as the findings and
conclusions of this Court. The petition for writ of habeas corpus is due to be
DISMISSED. A separate Order will be entered.
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 the 16th day of June, 2016.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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