ROBINSON v. SECRETARY DEPARTMENT OF CORRECTIONS et al

Filing 10

ORDER ADOPTING 7 REPORT AND RECOMMENDATION and dismissing 1 Petition for Writ of Habeas Corpus filed by IVORY LEE ROBINSON; signed by SENIOR JUDGE MAURICE M PAUL on 6/1/11. (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
IVORY LEE ROBINSON,
Petitioner,
v.

CASE NO. 1:11-cv-00078-MP -GRJ

FLORIDA ATTORNEY GENERAL, SECRETARY DEPARTMENT OF CORRECTIONS,
Respondents.
_____________________________/
ORDER
This matter is before the Court on Doc. 7, Report and Recommendation of the Magistrate
Judge, recommending that this petition under 8 U.S.C. § 2254 be dismissed as successive. The
petitioner filed objections, at Doc. 9.
The Court agrees with the Magistrate Judge that the petitioner has filed two previous
petitions under § 2254 which were denied, see 1:06-cv-00061-MP-AK and 1:11-cv-00043-MPGRJ. Under § 2244(b) claims previously raised must be dismissed and claims not previously
raised must be dismissed if the petitioner has not first sought leave from the Eleventh Circuit.
Thus, the Court agrees that to the extent these claims are brought under § 2254, they should be
dismissed.
In the objections, petitioner appears to argue that he should be entitled to use § 2241
because § 2254 is “inadequate and ineffective” since he has been denied relief on a previously
filed habeas petition and the Eleventh Circuit has refused to allow him to file a successive
petition. Though § 2241 is the general habeas corpus statute, any relief solely thereunder is
reserved for those instances in which the petitioner is not “in custody pursuant to the judgment of

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a State court,” 28 U.S.C. § 2254(a), such as where a pretrial detainee complains that his
detention violates the Constitution or laws of the United States. Medberry v. Crosby, 351 F.3d
1049, 1060 (11th Cir. 2003). Where the petitioner is in fact “in custody pursuant to the judgment
of a State court,” such as instant petitioner, his petition is subject to the additional requirements
of § 2254, such as exhaustion and timeliness. Id. at 1062. Otherwise, § 2254 “would never be
used or applied,” id . at 1061, and “would be a complete dead letter, because no state prisoner
would choose to run the gauntlet of § 2254 restrictions when he could avoid those limitations
simply by writing ‘ § 2241’ on his petition for federal post-conviction relief.” Id. at 1060-61.
In short, instant Petitioner, who is clearly in custody pursuant to a state court judgment,
may not bypass the requirements of § 2254 and file a § 2241 petition simply because he has not
received any habeas corpus relief. Furthermore, the fact that his previous attempts at habeas
relief have been unsuccessful does not mean that § 2254 is inadequate or ineffective, only that
petitioner is not entitled to relief under that statute. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge is adopted and
incorporated herein.

2.

The petitioner at Doc. 1 is dismissed.

DONE AND ORDERED this 1st day of June, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:11-cv-00078-MP -GRJ