Duncan v. Gordy et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 10/25/2017. (PSM)
2017 Oct-25 PM 01:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ADRIAN KERMIT DUNCAN,
GORDY and the ATTORNEY
GENERAL OF THE STATE OF
This is a habeas corpus action filed pursuant to 28 U.S.C. § 2254 by
Petitioner Adrian Kermit Duncan (“Duncan” or “Petitioner”) an Alabama state
prisoner acting pro se. (Doc.1 1). He seeks to attack a state-court judgment by
which he was sentenced to 25 years imprisonment in January 2001. He has also
filed a motion asking the court to require the State to produce a host of documents
related to his arrest and ensuing criminal prosecution in state court. (Doc. 2). On
October 3, 2017, the magistrate judge to whom the action was referred entered a
References to “Doc(s). __” are to the document number of the pleading, motions, and
other materials in the court file, as compiled and designated on the docket sheet by the Clerk of
the Court. Pinpoint citations are to the page of the electronically-filed document in the court’s
CM/ECF system, which may not correspond to pagination on the original “hard” copy presented
report and recommendation pursuant to 28 U.S.C. § 636(b). (Doc. 3 (“R&R”)). In
his R&R, the magistrate judge recommends that the petition be dismissed for lack
of jurisdiction as a second or successive § 2254 application for purposes of 28
U.S.C. § 2244(b), because Duncan has not alleged or shown that he has an
authorizing order from the Eleventh Circuit. (Id.) Duncan has now filed timely a
two-page objection to the R&R. (Doc. 4 (“Objection” or “Obj.”)). His Objection
also contains a motion by which Duncan asks the court to supply him, presumably
free of charge, with “all records on file related to any habeas corpus petition
submitted [on his behalf]” because he “needs to see what claims [were] raised in a
past habeas corpus petition so that if needed [he] can seek review by filing the
appropriate petition upon the court of appeals for an order authorizing the district
court to consider the application.” (Obj. at 1).
To the extent that Duncan objects to the R&R, he has simply offered no
factual or legal basis whatever for calling into question the magistrate judge’s
finding that this action is a successive § 2254 habeas action over which this court
lacks jurisdiction under § 2244(b). Accordingly, having carefully reviewed and
considered de novo all the materials in the court file, including the magistrate
judge’s Report and Recommendation and the Petitioner’s Objections thereto, the
court is of the opinion that the magistrate judge’s findings are due to be and are
hereby ADOPTED and his recommendation is ACCEPTED. Petitioner’s
Objections are OVERRULED. As a result, the petition for writ of habeas corpus
is due to be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
That disposition also leads the court conclude that both of Duncan’s
motions asking for documents (Docs. 2 and 4) are without merit. For starters, “[a]
habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of course.” Isaacs v. Head, 300 F.3d 1232, 1248 (11th Cir.
2002) (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)). To the extent
Duncan claims he is entitled to discovery to support the merits of his claims for
habeas relief asserted in this pending action, he is wrong because it is clear this
court has no subject-matter jurisdiction to hear those claims in the first place, for
the reasons stated in the R&R. Cf. Butler v. Sukhoi Co., 579 F.3d 1307, 1314
(11th Cir. 2009) (party bringing suit not entitled to discovery where complaint was
insufficient as a matter of law to establish a prima facie case that district court had
jurisdiction). Duncan also says he wants a copy of all records from his prior §
2254 action in this court to determine what claims he pursued there so that he
might move in the Eleventh Circuit for an order authorizing this court to consider
a second § 2254 application under 28 U.S.C. § 2244(b). (See Doc. 4 at 1).
However, Duncan was presumably furnished with a copy of all such documents as
a matter of the course during that prior proceeding, and he offers no explanation
for what might have happened to them. In any event, Duncan does not generally
enjoy a right to discovery or to be provided with documents or transcripts at public
expense for the purpose of combing such records in the speculative hope of
formulating a claim he might pursue in some collateral proceeding not yet
pending. See United States v. Adamson, 681 F. App’x 824, 827 (11th Cir. 2017);
United States v. Hernandez, 431 F. App’x 813, 813-14 (11th Cir. 2011); Ward v.
Daniels, 2012 WL 1642465, at *3 (N.D. Ala. Apr. 9, 2012), report and
recommendation adopted, 2012 WL 1642176 (N.D. Ala. May 3, 2012); Lewis v.
Wheeler-White, 2010 WL 3023524, at *4-5 (S.D. Ala. July 1, 2010), report and
recommendation adopted, 2010 WL 3002158 (S.D. Ala. July 29, 2010).
Moreover, Duncan’s theory that he needs the records from his first § 2254
action to see what claims he raised to allow him to move for leave in the Eleventh
Circuit to file another § 2254 petition misapprehends the substantial limitations §
2244(b) imposes on successive petitions. It is true that, once Duncan’s first §
2254 petition was dismissed with prejudice, any claim presented in that
application would have to be summarily dismissed if it were presented in another §
2254 application. See 28 U.S.C. § 2244(b)(1); Jones v. GDCP Warden, 815 F.3d
689, 696 (11th Cir. 2016). Nor could such a claim form the basis of motion for an
authorizing order. See In re Jones, 830 F.3d 1295, 1297 (11th Cir. 2016). The
real obstacle for Duncan, though, is that even if he did not raise a particular claim
for relief in his first § 2254 petition, that fact would not mean that the claim would
qualify for an authorizing order from the court of appeals. Not by a long shot.
Instead, even a claim not presented in a first § 2254 petition would support an
authorizing order if and only if: (1) “the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable,” 28 U.S.C. § 2244(b)(2)(A), or (2)(a) “the
factual predicate for the claim could not have been discovered previously through
the exercise of due diligence,” id. § 2244(b)(2)(B)(i), and (b) “the facts underlying
the claim, if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” Id. § 2244(b)(2)(B)(ii). Therefore, the focus of an inquiry on
a motion for an authorizing order in the court of appeals is on whether the
movant’s claim meets the stringent requirements of § 2244(b)(2)(A) or (B), not
simply whether the movant raised the claim in a prior § 2254 petition. Suffice it to
say that the court does not discern any of the claims raised in Duncan’s present
habeas petition (see R&R at 3-4) to even arguably qualify under § 2244(b)(2).
Based on the foregoing, Duncan’s pending motions asking to be furnished with
documents related to his state prosecution (Doc. 2) and with a copy of this court’s
file from his first § 2254 case (Doc. 4 at 1) are both due to be DENIED.
A separate final order will be entered.
Done this 25th day of October 2017.
L. Scott Coogler
United States District Judge
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