Collins v. Stewart

Filing 28

ORDER denying 26 Motion for Certificate of Appealability. Signed by Chief Judge William H. Steele on 11/4/2016. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE BERNARD COLLINS,
Petitioner,
v.
CYNTHIA STEWART,
Respondent.

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CIVIL ACTION 15-0647-WS-M

ORDER
This closed habeas matter comes before the Court on petitioner’s Application for
Certificate of Appealability construed from his Notice of Appeal (doc. 23).
On September 1, 2016, the undersigned entered an Order (doc. 21) and Judgment (doc.
22) dismissing Willie Bernard Collins’ § 2254 petition. In so doing, the Court adopted the
Report and Recommendation (doc. 19) in which the Magistrate Judge concluded that Collins’
petition was an unauthorized second or successive § 2254 motion, which must be denied for lack
of jurisdiction. See, e.g., Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“The
AEDPA provides that, to file a second or successive [§ 2254] motion, the movant must first file
an application with the appropriate court of appeals for an order authorizing the district court to
consider it. … Without authorization, the district court lacks jurisdiction to consider a second or
successive petition.”); 28 U.S.C. § 2244(b)(3)(A) (“Before 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.”).
Under the circumstances presented here, the Court readily concludes that issuance of a
Certificate of Appealability is not warranted in this case. Collins has not made “a substantial
showing of the denial of a constitutional right,” including a showing that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Moreover, it bears emphasis that the § 2244(b)(3)(A) procedural bar to Collins’ current § 2254
petition is clear and unambiguous. “Where a plain procedural bar is present and the district court
is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be allowed to proceed
further.” Slack, 529 U.S. at 484.
For all of these reasons, as well as those set forth in the Report and Recommendation, the
Court concludes that a plain procedural bar disposes of the petition, that reasonable jurists would
not find it debatable whether this Court’s procedural ruling was correct, and that issuance of a
COA is unwarranted. Accordingly, Collins’ construed Application for Certificate of
Appealability is denied.
DONE and ORDERED this 4th day of November, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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