Tidwell v. Butler et al

Filing 8

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 04/30/13. (SPT )

FILED
2013 Apr-30 PM 04:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
NOAH MONROE TIDWELL,
Petitioner,
vs.
WARDEN FREDDY BUTLER, et al.,
Respondents.

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Civil Action No. CV-13-S-612-NW

MEMORANDUM OPINION
This is a habeas corpus petition. The magistrate judge entered a report and
recommendation, recommending that the action be dismissed because it is a
successive petition and the petitioner has not obtained the required authorization from
the Eleventh Circuit Court of Appeals to file a successive petition in this court.
Objections have been filed.
In his objections, the petitioner explains that he is now seeking to raise a new
claim that was not presented in his first federal habeas petition due to extraordinary
circumstances that were beyond his control. See doc. no. 7, at 1. He requests that
this court issue an “order of authorization for the new petition to be hear[d] before the
Honorable Court and a[n] order to show cause why this petition should not be
granted.” Id. at 3 (alterations supplied).

Title 28 U.S.C. § 2244(b)(3)(A) provides that “[b]efore 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.” 28 U.S.C. § 2244(b)(3)(A) (alteration and emphasis
supplied). This court does not have authority to grant a petitioner permission to file
a successive petition. Rather, Tidwell must receive authorization from the Eleventh
Circuit Court of Appeals to file a successive petition in this court. Further, he must
obtain the necessary authorization to file a successive petition prior to filing the
successive petition in this court. Because Tidwell has not received authorization from
the Eleventh Circuit Court of Appeal to file a successful petition in this court, this
court lacks jurisdiction over the petition, and it is due to be dismissed.
The court has considered the entire file in this action, including the report and
recommendation and the petitioner’s objections to 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 the court.
This habeas petition is due to be dismissed, without prejudice, to allow the petitioner

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to obtain authorization from the Eleventh Circuit Court of Appeals to file a successive
petition in this court. An appropriate order will be entered separately.
DONE this 30th day of April, 2013.
______________________________
United States District Judge

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