Bell v. Thomas et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/14/2015. (AVC)

FILED
2015 Sep-14 PM 04:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
SHICOLBY DEVOL BELL,

)
)
Petitioner,
)
)
v.
)
)
KIM THOMAS and THE
)
ATTORNEY GENERAL FOR THE )
STATE OF ALABAMA,
)
)
Respondents.
)

Case No: 2:14-cvB02188-VEH-JHE

MEMORANDUM OPINION
On August 21, 2015, the magistrate judge entered a Report and
Recommendation, (doc. 11), recommending that the petitioner’s motions to amend,
(docs. 9 &10), be granted; his motion to produce the trial transcript, (doc. 8), be
denied; and his petition for writ of habeas corpus be dismissed without prejudice. No
objections have been filed. Instead, the petitioner has filed a motion to stay any
ruling on his petition until he can get permission from the Eleventh Circuit to file a
second or successive petition. (Doc. 12).
Section 2244 provides that “[b]efore a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the

application.” 28 U.S.C. § 2244(b)(3)(A). Thus, a district court presented with a
second or successive petition not authorized by the court of appeals must either
dismiss the petition for want of subject-matter jurisdiction, or transfer the petition to
the court of appeals for that court to consider. See Guenther v. Holt, 173 F.3d 1328
(11th Cir. 1999), cert denied, 528 U.S. 1085 (2000). While transfer appears to be the
preferred option when dismissal of the application may implicate the timeliness of a
subsequent application if the court of appeals grants the authorization, timeliness is
not implicated here. Accordingly, the motion to stay (doc. 12) is DENIED.
The court has considered the entire file in this action, together with the report
and recommendation, and has reached an independent conclusion that the report and
recommendation is due to be adopted and approved. Accordingly, the court hereby
adopts and approves the findings and recommendation of the magistrate judge as the
findings and conclusions of this court. The petition for writ of habeas corpus is due
to be DISMISSED WITHOUT PREJUDICE. A separate Order will be entered.
DONE this 14th day of September, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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