Robinson v. Benton et al

Filing 6

ORDER granting2 MOTION for Leave to Proceed in forma pauperis filed by Antonio Robinson,, REPORT AND RECOMMENDATION re 5 MOTION to Appoint Counsel filed by Antonio Robinson,, 1 Petition for Writ of Habeas Corpus filed by Antonio Robinson, Objections to R&R due by 4/10/2006.. Signed by Judge G. Mallon Faircloth on 3/20/06. (zbp, )

Robinson v. Benton et al

Doc. 6

Case 4:06-cv-00027-CDL

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Filed 03/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION
ANTONIO ROBINSON, Petitioner, VS. WARDEN BENTON and HIL T O N HALL, Respondents. * * * * * * * *

CASE NO. 4:06-CV-27 (CDL) HABEAS CORPUS 28 U.S.C. § 2254

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R E P O RT AND RECOMMENDATION Petitio n er, ANTONIO ROBINSON, has petitioned this court to allow him to proceed in forma pauperis in the above-styled habeas corpus proceeding brought pursuant to 28 U . S. C . § 2254. His affidavit submitted in support of his request to proceed in forma pau peris is sufficient on its face to allow him to so proceed. Accordingly, the petitioner's a p p l i ca t i o n to proceed in forma pauperis is hereby GRANTED. Petitio n er's application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, is before this court for preliminary consideration under Rule 4 of the Rules Governing Section 2 2 5 4 Proceedings For The United States District Courts. After preliminary examination, it a p p e a r s that the current § 2254 application is successive. R e v i e w of Petitioner's Procedural History A review of Petitioner's previous filings reveals that the current § 2254 application is Petitioner's third attempt at federal habeas relief. In his first § 2254 application filed in t h i s court on June 28, 2002, Case Number 4: 02-CV-101, the court found that Petitioner's

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Case 4:06-cv-00027-CDL

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Filed 03/21/2006

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a p p l i ca t i o n was time-barred, as he failed to file his federal habeas petition within the oney e a r AEDPA statute of limitations. Petitioner's request for a certificate of appealability was d e n i e d by this court and the Eleventh Circuit Court of Appeals. Thereafter, on June 11, 2003, P e t i ti o n e r filed a second § 2254 petition, Case Number 4:03-CV-89, in this court. The court again found that Petitioner's application was time barred. Petitioner's request for a

certificate of appealability was again denied by this court and the Eleventh Circuit Court of Appeals. Petitioner's record reveals that he pled guilty in Muscogee County Superior Court, to Three Counts of Armed Robbery and was sentenced to life imprisonment by that court on M a r c h 22, 1996. Petitioner filed no direct appeal of his guilty plea conviction and sentence. P e t i ti o n e r then filed a State habeas corpus petition attacking his conviction in Lowndes Co unty Superior court on an unspecified date, and the same was denied on March 23, 1998. P e t i ti o n e r thereafter filed a State habeas corpus petition in the Lowndes County Superior C o u rt and the same was denied on March 23, 1998. The Lowndes County court records s h o w e d that Petitioner filed no appeal from that adverse ruling. More than three years later, P e t i ti o n e r filed another State habeas corpus action in Hancock County Superior Court on A u g u s t 29, 2001, which was denied on November 21, 2001. During that 39-month period, t h e court found that Petitioner had no properly filed application for State post-conviction or o t h e r collateral review with respect to the pertinent judgment or claim pending, and the A E D P A one-year statute of limitations time period had run out. Thus, when Petitioner filed h i s first federal habeas petition, on June 28, 2002, his limitations period was expired. For 2

Case 4:06-cv-00027-CDL

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t h e same reason, Petitioner's second habeas petition filed on June 11, 2003, was also time barred. Title 28, U.S.C. § 2244(b)(3)(A) provides that "[b]efore a second or successive

a p p l i ca t i o n permitted by this section is filed in the district court, the applicant shall move in t h e appropriate court of appeals for an order authorizing the district court to consider the application . " Therefore, this court is without jurisdiction to review Petitioner's § 2254 p e t i ti o n until such time as the Eleventh Circuit Court of Appeals grants his motion to file a second or successive petition. Along with his current federal habeas petition, Petitioner filed a Motion for A p p o i n t m e n t of Counsel and a Jury Trial Demand. Pursuant to the foregoing

r e c o m m e n d a t io n , Petitioner's request for appointment of counsel and jury trial demand shou ld be dismissed as moot. T H E R E F O R E , IT IS HEREBY RECOMMENDED that Petitioner's present action b e DISMISSED for Petitioner to seek authorization to file this application in the District Co urt. Pursuant to 28 U.S.C. § 636 (b)(1), Petitioner may serve and file written objections t o this Recommendation with the

United States District Judge WITHIN TEN (10)

DAY S after being served with a copy hereof. S O RECOMMENDED, this 20th day of March, 2006. S/ G. MALLON FAIRCLOTH UNITED STATES MAGISTRATE JUDGE sWe

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