Davis v. Bolling
Filing
11
MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/22/2018. (KAM)
FILED
2018 May-22 AM 11:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOE C. DAVIS,
Petitioner,
vs.
LEON BOLLING, Warden, and the
ATTORNEY GENERAL OF THE
STATE OF ALABAMA,
Respondents.
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Case No. 2:16-cv-1007-RDP-TMP
MEMORANDUM OPINION
The Magistrate Judge filed his Report and Recommendation on May 9, 2018,
recommending that the court dismiss the above-entitled habeas action as being a
second or successive petition under 28 U.S.C. § 2244(b)(3)(A). Petitioner filed his
timely objections to the Report and Recommendation May 18, 2018. 1 Having
carefully reviewed the Report and Recommendation, the objections, and other
materials in the court record, the court finds that the objections are due to be
OVERRULED and the Magistrate Judge’s Report and Recommendation
Although the prisoner mailbox rule applies to the date the objections were delivered to prison
officials for mailing, there is no readily discernible date apparent on the objections. In any event,
even the later date on which the court received the objections was still within the time allowed for
objections.
1
ADOPTED and ACCEPTED.
Petitioner’s original habeas claim in this action alleged that his constitutional
rights to due process and equal protection were violated by the trial court’s denial of
his motion for a sentence reduction pursuant to Alabama Code § 13A-5-9.1. He
contends in his objections to the Report and Recommendation that the factual
predicate of his claim did not exist at the time of his earlier 2007 habeas petition
and, thus, his current petition is not successive. But the exhibits annexed to the
Respondents’ answer show that this assertion is incorrect.
In the earlier habeas action, Davis v. Jones, Case No. 2:07-cv-455-HGD, the
Magistrate Judge found that the Petitioner had filed three motions for a sentence
reduction, each of which were denied by the trial court, by 2006, a year before he
filed the habeas petition in that case. (See Doc. 6-1, at p. 2 of 11). Clearly, the
factual predicate for Petitioner’s claim -- that he was denied a sentence reduction -existed and was known to Petitioner when he filed the 2007 habeas action. He
could have asserted that claim in 2007 and his attempt to raise the claim here is
indeed successive. For this reason, the cases cited by Petitioner, holding that parole
claims arising after the resolution of the original petition challenging the conviction
are not successive because the factual predicate did not exist at the time of the
original petition, are factually distinguishable from this case. In his 2007 petition,
he had already filed motions for sentence reduction and those motions were denied.
By separate Order, the court will DISMISS WITHOUT PREJUDICE the
instant petition for want of jurisdiction because it is successive.
DONE and ORDERED this May 22, 2018.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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