McElyea v. Gordy et al
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/21/2018. (AFS)
FILED
2018 Aug-21 AM 08:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TONY WAYNE MCELYEA,
Petitioner,
v.
WARDEN GORDY, et al.,
Respondents.
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Civil Action Number
5:17-cv-01085-AKK-HNJ
MEMORANDUM OPINION
The magistrate judge filed a report and recommendation on July 18, 2018,
recommending that the court dismiss Petitioner Tony McElyea’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2244(b). Doc. 3. Specifically, the magistrate
judge found that McElyea raised the same double jeopardy claim in his present
petition that he raised in his July 2010 petition, thereby violating 28 U.S.C.
§ 2244(b)(1). Id. at 5. The magistrate judge also found that McElyea raised new
claims in the present petition without the requisite showing under § 2244(b)(2) that
the new claims rely on a new rule of constitutional law or that he could not have
discovered previously the factual predicate for the newly raised claims. Id. at 5-6. In
the alternative, the magistrate judge recommended that the court dismiss McElyea’s
petition for failing to obtain authorization from the Eleventh Circuit Court of
Appeals before filing a second or successive petition under 28 U.S.C.
§ 2244(b)(3)(A). Id. at 6.
McElyea filed objections to the report and recommendation on August 8,
2018. Doc. 7. According to McElyea, the court held his July 2010 petition “without
adjudicating it or notifying petitioner that they [were] holding it.” Doc. 7 at 1. He
claims also that he believed the present petition “would be his first 2254 of record.”
Id.
On November 2, 2011, Magistrate Judge Harwell G. Davis, III,
recommended the court deny McElyea’s first § 2254 petition. Doc. 11 in McElyea
v. Mitchem, No. 5:10-cv-01819-SLB-HGD (N.D. Ala. Nov. 2, 2011). Judge Davis
notified McElyea that he had fourteen days to file written objections. Id. On
November 16, 2011, McElyea requested a twenty day extension to file objections to
the report and recommendation, doc. 12 in Mitchem, No. 5:10-cv-01819-SLBHGD, which Judge Davis granted. However, McElyea failed to file objections and
the court denied MCElyea’s petition on January 3, 2012. Docs. 13 & 14 in
Mitchem, No. 5:10-cv-01819-SLB-HGD. Thus, it appears that McElyea knew that
Judge Davis recommended that his July 2010 petition be denied and that his claims
were subject to dismissal.
Next, McElyea argues that he did not raise a double jeopardy claim in the
present petition and therefore did not violate 28 U.S.C. § 2244(b)(1). Doc. 7 at 1.
He contends that he “simpl[y] mentioned” the issue of double jeopardy in support
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of his claims. Id. However, McElyea clearly stated as ground three of his current
petition that his “conviction [was] obtained by a violation of the protection against
double jeapordy [sic].” Doc. 1-2 at 2, 5. Because McElyea alleged the same claim
in his July 2010 petition, it is subject to dismissal under § 2244(b)(1).
McElyea further contends that the jury included a note with its guilty verdict
stating that the victim contributed to the crime, and the note, therefore, negated the
element of forcible compulsion and showed the act was consensual. Doc. 7 at 1.
McElyea did not raise this issue in the present petition. Doc. 1. Even if he had, it
would be subject to dismissal under § 2241(b)(1) since he raised it in his July 2010
petition and the court denied the claim. Doc. 11 in Mitchem, No. 5:10-cv-01819SLB-HGD
Having carefully considered de novo all the materials in the court file,
including the report and recommendation and the objections thereto, the court
ADOPTS the report and ACCEPTS the recommendation. The court ORDERS
that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
above-styled cause is due to be denied and dismissed with prejudice. A separate
order will be entered.
The court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This
court finds petitioner’s claims do not satisfy either standard.
DONE the 21st day of August, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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