Gilley v. Davenport et al

Filing 8

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 1/3/2013. (KAM, )

FILED
2013 Jan-03 PM 03:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DALE WILLIAM GILLEY, JR.,
Petitioner
v.
CARTER DAVENPORT and
THE ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents

)
)
)
)
)
)
)
)
)
)
)

Case No. 5:12-cv-03919-SLB-HGD

MEMORANDUM OPINION
On November 28, 2012, the magistrate judge’s report and recommendation was
entered and the parties were allowed therein fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. On December 3,
2012, petitioner filed objections to the magistrate judge’s report and recommendation.
Petitioner first objects that the magistrate judge entered his report and
recommendation prematurely, before petitioner had mailed an authorization form
allowing the magistrate judge to consider his habeas corpus petition, thereby
depriving him of jurisdiction to enter a report and recommendation. Under Local
Rule 72.1(a)(3), “[a] magistrate judge of the court may be designated to hear and
determine any pretrial matter pending before the court” including “[h]abeas corpus
petitions filed by state prisoners under 28 U.S.C. 2254 or by federal prisoners under

28 U.S.C. 2241.” “In connection with such matters, the magistrate judge is expressly
authorized to issue orders to show cause and other necessary orders or writs to obtain
a complete record.” LR 72.1(a)(3)(A). Magistrate judges also may be designated to
hear “[o]riginal complaints by prisoners or detainees for the deprivation of
constitutional rights.” LR 72.1(a)(3)(D). See also Order filed in the United States
District Court for the Northern District of Alabama on October 1, 1990 (“In
accordance with the Rules Governing Jurisdiction of Authority of United States
Magistrates promulgated by this Court it is hereby ORDERED that the following
matters are referred to the full-time United States Magistrates without the necessity
of a specific order of reference: . . . . (3) All those matters under the heading ‘Prisoner
Petitions’ enumerated in Rule 2(a)(4) of the Rules Governing Jurisdiction of
Authority of United States Magistrates; . . .”); Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b).
With respect to any dispositive motion on which the magistrate judge issues a report
and recommendation, petitioner retains a right of review by the district judge assigned
to this case, if review is sought within fourteen (14) days of the ruling, under a de
novo standard. Id. Because petitioner’s consent to the jurisdiction of the magistrate
judge to enter a report and recommendation is not required, the magistrate judge had
jurisdiction to enter the report and recommendation.
Petitioner also contends that he mailed with the authorization form a document
that he filed with the appropriate court of appeals seeking permission to file a second
Page 2 of 3

or successive habeas corpus petition. The court has not received the documents
petitioner claims to have mailed. Further, the mere fact that petitioner has sought
permission from the Eleventh Circuit to file a second or successive habeas corpus
petition is not relevant; he must have actually received such permission. There is no
indication that Gilley has received such permission from the Eleventh Circuit.
After careful consideration of the record in this case and the magistrate judge’s
report and recommendation and the petitioner’s objections thereto, the court hereby
ADOPTS the report of the magistrate judge. The court further ACCEPTS the
recommendations of the magistrate judge that the petition for writ of habeas corpus
be dismissed.
A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this 3rd day of January, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

Page 3 of 3