Larry v. Gordy

Filing 8

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/5/2018. (PSM)

FILED
2018 Feb-05 PM 01:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES KEITH LARRY,

)
)
Petitioner,
)
)
v.
)
)
CHRISTOPHER GORDY, Warden, )
and the ATTORNEY GENERAL
)
OF THE STATE OF ALABAMA,
)
)
Respondents.
)

5:18-cv-0004-LSC-JEO

MEMORANDUM OPINION
This is a habeas corpus action filed pursuant to 28 U.S.C. § 2254 by
Petitioner James Keith Larry, an Alabama state prisoner acting pro se. (Doc. 1).
Larry was convicted at trial in 2010 in the Circuit Court of Lauderdale County,
Alabama, on charges of aggravated stalking, see Ala. Code § 13A-6-91, and
criminal mischief in the first degree, see Ala. Code § 13A7-21. The state trial
court sentenced him to life imprisonment on the former charge and to 15 years
imprisonment on the latter, with the sentences to run consecutively. In his federal
habeas petition, Larry raises claims of ineffective assistance of counsel and argues
that his due process rights were violated on the theory that he was incompetent to
stand trial and was not criminally responsible for his actions due to an alleged
mental defect. (Doc. 1 at 5, 10-26). On January 9, 2018, the magistrate judge to

whom the action is referred entered a Report and Recommendation (“R&R”), see
28 U.S.C. § 636(b), recommending that Larry’s petition be dismissed for lack of
jurisdiction under 28 U.S.C. § 2244(b) because it is a successive § 2254 habeas
application. (Doc. 4). Larry has now filed a timely Objection to the R&R. (Doc.
7).
Most of Larry’s arguments in his eight-page Objection assert that the R&R
is due to be rejected because his claims for federal habeas relief are, he says, both
timely filed under 28 U.S.C. § 2244(d) and exhausted in the Alabama state courts,
as required under 28 U.S.C. § 2254(b). Even if Larry were correct that his claims
are both timely and exhausted, these arguments are misguided. That is so because
the R&R does not recommend that Larry’s claims be denied based on the statute of
limitations or a failure to exhaust. Rather, the R&R recommends dismissal of the
petition for lack of jurisdiction under 28 U.S.C. § 2244(b) on the ground that it is a
second or successive habeas corpus application subject to § 2254. As the
magistrate judge explained in the R&R, since Larry has previously filed a § 2254
habeas petition that was denied with prejudice, under § 2244(b)(3)(A), he must
procure an order from the Eleventh Circuit Court of Appeals authorizing a district
court to hear another § 2254 petition that attacks the validity of the same
conviction. To that end, Larry does not dispute that he had a prior § 2254 habeas
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petition denied with prejudice, that his instant § 2254 petition attacks the same
Alabama conviction, or that he does not possess an authorizing order from the
Eleventh Circuit.
Larry does raise one argument, however, in which he contends that this
court can still hear his instant claims despite the limitations that § 2244(b) imposes
on successive petitions. In particular, he maintains that the magistrate judge’s
recommendation to dismiss for lack of jurisdiction is “contrary to ... 28 U.S.C. §
2244(b)(B)(ii) [sic].” (Doc. 7 at 1). There is no such designated section of 28
U.S.C. § 2244, but it appears that Larry meant to refer to subsection (b)(2)(B)(ii)
of the statute, insofar as he later cites and quotes from that provision in his
Objection. (Doc. 7 at 4). In relevant part, § 2244(b)(2) provides as follows:
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
***
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
(ii) the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty
of the underlying offense.

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28 U.S.C. §§ 2244(b)(2)(B)(i), (ii).
In this vein, Larry acknowledges that he filed a prior federal habeas corpus
petition. He emphasizes, however, that he did not therein raise his instant claim
asserting that his conviction violated due process because he was mentally
incompetent. (Doc. 7 at 2). From there, he seems to argue that this court is
authorized to hear that previously unpresented habeas claim pursuant to §
2244(b)(2)(B)(ii), on the theory that the evidence that he was “mentally insane at
the time of the alleged offenses having been committed” is so strong that “no
reasonable factfinder would have found [him] guilty ....” (Id. at 5).
This line of argument is also wholly without merit. Larry seems to interpret
§ 2244(b)(2)(B)(ii) as allowing the jurisdictional bar on successive habeas
petitions without an authorizing order to be overcome by a finding by the district
court that the petitioner is actually innocent of his underlying crime. However,
there is no judicially-created actual innocence exception that applies to §
2244(b)’s restrictions on successive habeas applications. See In re Bolin, 811 F.3d
403, 411 (11th Cir. 2016) (recognizing that the “actual innocence” exception that
allows a federal district court to hear habeas claims that are otherwise time barred
does not apply to the statutory restrictions on successive petitions); Villar v.
Warden, 2017 WL 5617501, at *3 (N.D. Ala. Nov. 3, 2017) (Ott, M.J.), report and
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recommendation adopted, 2017 WL 5598438 (N.D. Ala. Nov. 21, 2017); Bell v.
Thomas, 2015 WL 5475412, at *2 (N.D. Ala. Sept. 14, 2015). Moreover, Larry’s
argument misapprehends how the statutory scheme operates. For starters, in order
to be eligible to raise a claim not presented in a prior habeas petition in a
successive petition under § 2244(b)(2)(B), an applicant must establish not just
actual innocence, but also a constitutional violation, see 28 U.S.C. §
2244(b)(2)(B)(ii); In re Lambrix, 624 F.3d 1355, 1362 (11th Cir. 2010), and that
the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence. 28 U.S.C. § 2244(b)(2)(B)(i). But more to
the point here, the criteria set forth in § 2244(b)(2) for filing successive petitions
are not considered by district courts. Rather, those criteria are considered by the
appropriate court of appeals in determining whether to issue an order authorizing
an applicant to file a second or successive § 2254 petition in a district court. 28
U.S.C. § 2244(b)(3)(C). So even assuming purely for the sake of argument that
Larry could make a showing meeting the requirements of both § 2244(b)(2)(B)(i)
and (ii), he would have to make that case to the Eleventh Circuit, not this court.
Accordingly, the magistrate judge was correct to conclude that this court lacks
jurisdiction to entertain Larry’s successive habeas petition.
Having carefully reviewed and considered de novo all the materials in the
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court file, including the magistrate judge’s Report and Recommendation and the
Petitioner’s Objections thereto, the court is of the opinion that the magistrate
judge’s findings are due to be and are hereby ADOPTED and his recommendation
is ACCEPTED. Petitioner’s Objections are OVERRULED. As a result, the
petition for writ of habeas corpus is due to be DISMISSED WITHOUT
PREJUDICE for lack of jurisdiction under 28 U.S.C. § 2244(b). A separate Final
Order will be entered.
Done this 5th day of February 2018.

L. Scott Coogler
United States District Judge
[160704]

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