Patrick v. Norris

Filing 2

RECOMMENDED DISPOSITION recommending that the District Court dismiss 1 Petitioner Eddie Lee Patrick Jr.'s petition for writ of habeas corpus, without prejudice, for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Petition for Writ of Habeas Corpus filed by Eddie Lee Patrick, Jr Objections to R&R due no later than 14 days from the date on the Recommended Disposition. Signed by Magistrate Judge Beth Deere on 2/26/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION E D D I E LEE PATRICK, JR. A D C # 94049 V S. NO. 5:10CV00035-JLH-BD PETITIONER

L A R R Y NORRIS, Director, Arkansas Department of Correction

R ESPON D EN T

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to Chief United States D is tric t J. Leon Holmes. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v id e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than fourteen (1 4 ) days from the date on the Recommended Disposition. A copy will be furnished to th e opposing party. Failure to file timely objections may result in waiver of the right to a p p e a l questions of fact.

Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B a c k g r o u n d and Discussion P e titio n e r, Eddie Lee Patrick, Jr., is serving a 480-month sentence in the Arkansas D e p a rtm e n t of Correction ("ADC") for terroristic threatening and rape. On February 5, 2 0 1 0 , Petitioner filed this pro se petition for a writ of habeas corpus (docket entry #1) u n d e r 28 U.S.C. § 2254, claiming he was denied a fair trial and effective assistance of c o u n s e l during his April, 2003 trial in the Circuit Court of Jefferson County, Arkansas. (#1 at pp. 5-6) On October 8, 2009, this Court entered an order dismissing, with prejudice, all of P e titio n e r's claims in a petition for writ of habeas corpus he filed on November 5, 2008, c h a lle n g in g the same conviction and sentence he challenges in the instant petition. This C o u rt dismissed the petition on the grounds that all of the claims were barred by the s ta tu te of limitations set forth in 28 U.S.C. § 2244(d). See Patrick v. State of Arknsas, N o . 5:08cv00295-BD (E.D. Ark. filed Nov. 5, 2008). R u le 4 of the Rules Governing Section 2254 Cases in the United States District C o u rts authorizes a district court to summarily dismiss a habeas corpus petition prior to an

2

answer or other responsive pleading.1 Summary dismissal is appropriate under Rule 4 w h e re the face of the petition and the court records, of which a federal district court can ta k e judicial notice, indicate that the petition is a second or successive petition filed w ith o u t authorization from the appropriate court of appeals. Blackmon v. Armontrout, 61 F e d .A p p x . 985, 985 (8th Cir. 2003). Before filing a second or successive habeas application in district court under § 2254, a petitioner is required to move in the appropriate court of appeals for an order a u th o riz in g the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). Without an order from the circuit court authorizing the filing of a second or successive h a b e a s application, a district court does not have jurisdiction to hear the petition. Burton v . Stewart, 549 U.S. 147, 153, 157 (2007) (per curiam). F ro m the face of the instant habeas petition and the court records, it plainly a p p e a rs that this petition is a second or successive habeas application. Petitioner a p p a re n tly has not obtained authorization from the Eighth Circuit to file a second or s u c c e s s iv e habeas petition. Accordingly, this Court lacks jurisdiction to entertain the p e titio n .

Rule 4 provides: "The clerk must promptly forward the petition to a judge under th e court's assignment procedure, and the judge must promptly examine it. If it plainly a p p e a rs from the petition and any attached exhibits that the petitioner is not entitled to re lie f in the district court, the judge must dismiss the petition and direct the clerk to notify th e petitioner." 3

1

III.

C o n c lu s io n T h e Court recommends that the District Court DISMISS Petitioner Eddie Lee

P a tric k Jr.'s petition for writ of habeas corpus, without prejudice, for lack of jurisdiction, p u rs u a n t to Rule 4 of the Rules Governing Section 2254 Cases. D A T E D this 26th day of February, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

4