Martin v. Norris

Filing 14

MEMORANDUM OPINION AND ORDER granting 9 Respondent's motion and dismissing 2 petition for writ of habeas corpus. Signed by Magistrate Judge Beth Deere on 3/23/10. (hph)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION L A W R E N C E EDWARD MARTIN A D C #106491 v. CASE NO.: 5:10CV00016 BD PETITIONER R A Y HOBBS, Interim Director,1 A r k a n s a s Department of Correction M E M O R A N D U M OPINION AND ORDER R ESPON D EN T P e n d in g is Respondent's Motion to Dismiss (docket entry #9). Petitioner has re s p o n d e d (#11). For the following reasons, Respondent's motion (#9) is GRANTED, a n d this 28 U.S.C. 2254 petition for writ of habeas corpus (#2) is DISMISSED, without p re ju d ic e . I. B ackground O n June 21, 1995, a Pulaski County Circuit Court jury found Petitioner guilty of c a p ita l murder. He was sentenced to life imprisonment without parole. Petitioner a p p e a le d , and the Supreme Court of Arkansas affirmed his conviction on May 5, 1997. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). On September 27, 2001, Petitioner filed a 28 U.S.C. 2254 petition for writ of h a b e a s corpus in the United States District Court, Eastern District of Arkansas. Martin v. In the Petition (#2), Petitioner names Larry Norris as Respondent. Under Rule 2 o f the Rules Governing 2254 Cases in United States District Courts, the proper R e sp o n d e n t is the state officer who has custody of Petitioner. That officer is currently R a y Hobbs, Interim Director of the Arkansas Department of Correction. Accordingly, the C le rk is instructed to substitute Mr. Hobbs as the Respondent. 1 Norris, 5:01CV00331 (E.D.Ark. dismissed Nov. 14, 2003). The Court dismissed the p e titio n with prejudice and Petitioner appealed. On March 17, 2004, the Eighth Circuit C o u rt of Appeals denied Petitioner's application for certificate of appealability and d is m is s e d the appeal. Martin v. Norris, No. 04-1023 (8th Cir. dismissed March 17, 2 0 0 4 ). On October 4, 2004, the Supreme Court of the United States denied Petitioner's re q u e s t for a writ of certiorari. Martin v. Norris, 543 U.S. 843, 125 S.Ct. 283 (2004). Petitioner filed the pending petition on January 20, 2010 (#2). II. Discussion A person in custody under the judgment of a State court may challenge the ju d g m e n t in federal district court through a petition for writ of habeas corpus. 28 U.S.C. 2254(a). Before filing a second or successive petition, however, the person is required to move in the appropriate court of appeals for an order authorizing the district court to c o n s id e r the second or successive application. 28 U.S.C. 2244(b)(3)(A). A petition is successive if Petitioner "twice brought claims contesting the same c u s to d y imposed by the same judgment of a state court." Burton v. Stewart, 549 U.S. 1 4 7 , 153, 127 S.Ct. 793, 796 (2007) (per curiam). Petitioner's current petition raises d iffe re n t claims from his previous petition, but challenges the same custody imposed by th e same judgment as in his previous petition. Thus, the current petition is successive. T h is Court lacks jurisdiction to hear a second or successive petition without prior a u th o riz a tio n from the court of appeals. Id. It is apparent from the record that Petitioner 2 has not received the required authorization. Under these circumstances, the Court must g ra n t Respondent's motion and dismiss the petition without prejudice. III. C o n c lu s io n T h is Court lacks jurisdiction to entertain Petitioner's second or successive petition. Accordingly, Respondent's motion (#9) is GRANTED and this petition for writ of habeas c o rp u s (#2) is DISMISSED without prejudice. IT IS SO ORDERED this 23rd day of March, 2010. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 3

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