Coker v. Gordy et al

Filing 21

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/15/2019. (PSM)

FILED
2019 Jul-15 AM 11:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

LARRY GWEN COKER,
Petitioner,
v.
DEWAYNE ESTES, Warden, et al.,
Respondents.

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Case No. 4:18-cv-767-LSC-GMB

MEMORANDUM OPINION
On May 20, 2019, the magistrate judge entered a report recommending the
petition be dismissed without prejudice for want of pre-clearance by the court of
appeals pursuant to 28 U.S.C. § 2244(b)(3). (Doc. 17). The magistrate judge noted
the petitioner had previously submitted a petition in this court challenging the
validity of the convictions he received on June 24, 2008, for two counts of
violating the sex offender registration law and one count of obscuring a vehicle’s
VIN number, See Larry Gwen Coker v. Christopher Gordy, et al., Case No. 4:15cv-666-LSC-TMP, and that this is a successive petition challenging those same
convictions. The petitioner filed objections to the report and recommendation on
May 30, 2019. (Doc. 18). He contends this is not a successive petition because he

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was re-tried and re-convicted in the state court subsequent to his previous federal
petition. 1 This contention is without merit.
The court takes judicial notice of the online records of the St. Clair County
(Pell City) Circuit Court at https://v2.alacourt.com/index.htm. Those records
include an order entered by Judge Weathington on August 14, 2017, addressing
two pending Rule 32 motions filed by the petitioner. State of Alabama v. Larry G.
Coker, Case No. CC-2007-000285.63 at Doc. #6. 2 Judge Weathington conducted a
hearing on August 2, 2017, with regard to the pending petitions (which the court
found to contain identical allegations) and concluded that they not only were
successive of at least three prior post-conviction petitions filed in that court, but
that the petitioner had failed to carry his burden to prove that the sentences
imposed pursuant to the Alabama habitual offender Act were illegal or violated
State or Federal constitutional law. (Id. at 4). It is evident that Judge Weathington
neither conducted a re-trial of, nor re-sentenced the petitioner for, the criminal
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The petitioner states that St. Clair County Circuit Judge Billy R. Weathington, Jr., “retried
[him] [a] second time on the first week of August 2017 … [and] found him guilty the 2nd time
[and] resentenced him the 2nd time.” (Doc. 18 at 3). He now contends that the present petition is
not successive because his criminal conviction “had been reversed and remanded back to St.
Clair County Circuit Court for further review.” (Id. at 6). As noted infra, his characterization of
the August 2017 state court proceedings is not accurate.
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Contrary to the petitioner’s assertion that his criminal convictions had been reversed and
remanded for a new trial, Judge Weathington explains that “On December 14, 2016, the
Alabama Court of Criminal Appeals reversed and remanded the case to this Court with directions
to set aside its order denying Petitioner’s Motion to Correct Sentence and address the motion as a
Rule 32 petition.” (Id).
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charges that resulted in the 2008 convictions. For that reason, the petitioner’s
assertion, that the convictions he is attacking in this action are new and separate
from the convictions previously challenged in this court, is without merit. Having
failed to obtain permission from the Eleventh Circuit Court of Appeals to present
this successive petition, this action is due to be dismissed pursuant to 28 U.S.C. §
2244(b).
Accordingly, after careful consideration of the record in this case, including
the magistrate judge’s report and the objections thereto, the court hereby ADOPTS
the report of the magistrate judge and ACCEPTS his recommendations.

In

accordance with the recommendation, the court finds that the petition in this matter
is due to be dismissed without prejudice for failure to obtain pre-clearance from the
Eleventh Circuit Court of Appeals.
A separate order will be entered.
Based on the foregoing, the petitioner’s motions at documents #11 through
#14 are DENIED as moot.
The Clerk is DIRECTED to serve a copy of this memorandum opinion and
the accompanying final judgment on the petitioner.

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DONE and ORDERED on July 15, 2019.

_____________________________
L. Scott Coogler
United States District Judge
160704

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