Gill v. Bolling et al

Filing 18

MEMORANDUM OPINION - Having carefully considered the record in this case, the court ADOPTS the magistrate judges report and ACCEPTS his recommendation, with the exception of the recommendation that the court dismiss this case with prejudice because d ismissal for lack of jurisdiction is without prejudice. See Stalley v. Orlando Regl Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). By separate order, the court WILL DENY the petition and WILL DISMISS this action for lack of jurisdiction. Signed by Judge Annemarie Carney Axon on 7/3/2019. (KEK)

FILED
2019 Jul-03 AM 10:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ROBERT C. GILL,

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Petitioner,
v.
LEON BOLLING, et al.,
Respondents.

Case No. 5:16-cv-0917-ACA-JEO

MEMORANDUM OPINION
This is an action on a petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by Robert C. Gill, a prisoner proceeding pro se. (Doc. 1). On April
10, 2019, the magistrate judge entered a report in which he recommended that the
court dismiss this matter for lack of jurisdiction because it is untimely. (Doc. 16).
Mr. Gill filed objections to the report and recommendation on April 29, 2019.
(Doc. 17).
Mr. Gill attacks the magistrate judge’s finding on two fronts. Mr. Gill
contends that his petition is timely because the state court amended its judgment in
January 2015. (Doc. 17 at 2–3). This argument is without merit. Based on the
authorities cited in the report and recommendation, the magistrate judge correctly
concluded that the 2015 amendment was not a new judgment for purposes of 28
U.S.C. § 2244. (See Doc. 16 at 8–12).

Mr. Gill also argues that he is still “in custody” for purposes of the 1992
conviction because that conviction was used to enhance the punishment associated
with his 1996 conviction, for which he remains incarcerated. (Doc. 17 at 4–5).
Mr. Gill maintains that the instant petition “can be construed as asserting a
challenge to the 1996 sentence as enhanced by the allegedly invalid prior 1992
conviction.” (Doc. 17 at 5) (internal quotation marks and punctuation omitted)
(citing Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001)). This
argument fails on two fronts. First, to the extent Mr. Gill challenges his 1996
conviction in this action, such would be a successive petition for which he has not
demonstrated Eleventh Circuit approval pursuant to 28 U.S.C. § 2244(b). See Gill
v. Mitchem, Case No. 5:01-cv-01770-CLS-JEO. Second, the magistrate judge
correctly noted that where a conviction used to enhance a later sentence is no
longer open to direct or collateral attack, as is Mr. Gill’s 1992 conviction in this
instance, it cannot be used to challenge the later enhanced conviction on grounds
that the earlier conviction “was unconstitutionally obtained.” (Doc. 16 at 12)
(quoting Lackawanna County District Attorney, 532 U.S. at 404).

Therefore,

neither the 1992 conviction nor the 1996 conviction is presently open to federal
habeas relief.
Accordingly, the court OVERRULES Mr. Gill’s objections.

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Having carefully considered the record in this case, the court ADOPTS the
magistrate judge’s report and ACCEPTS his recommendation, with the exception
of the recommendation that the court dismiss this case with prejudice because
dismissal for lack of jurisdiction is without prejudice. See Stalley v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008).
By separate order, the court WILL DENY the petition and WILL
DISMISS this action for lack of jurisdiction.
The court DIRECTS the Clerk to serve a copy of this memorandum opinion
on Mr. Gill.
DONE and ORDERED this July 3, 2019.

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ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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