Green v. Conley

Filing 6

OPINION AND ORDER adopting Magistrate Judge Alan J. Baverman's Final Report and Recommendation 4 and dismissing this action. Signed by Judge William S. Duffey, Jr on 10/11/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MONTRELL GREEN,
Petitioner,
v.

1:17-cv-2079-WSD

WARDEN T. J. CONLEY ,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [4] (“R&R”), recommending that this action be
dismissed.
I.

BACKGROUND
On September 15, 2005, in Gwinnett County state court, Petitioner

Montrell Green (“Petitioner”) was convicted of malice murder, rape, sodomy,
burglary, and possession of a knife during the commission of a felony
(together, “1995 Convictions”). ([1] at 1). Petitioner was sentenced to a term of
life imprisonment. ([1] at 1). On November 16, 2012, in the Northern District of
Georgia, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 (“First Habeas Petition”), challenging his 1995 Convictions. See

Green v. Williams, No. 1:12-CV-4025-JEC (N.D. Ga. Nov. 16, 2012), Doc. No. 1.
On July 28, 2014, the Green court denied Petitioner’s habeas petition on the merits.
Id., Doc. No. 10.
On June 5, 2017, without obtaining permission from the Eleventh Circuit
Court of Appeals, Petitioner filed his second Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 [1] (“Second Habeas Petition”) in which he again
challenges his 1995 Convictions. On June 14, 2017, the Magistrate Judge issued
his R&R, recommending that Petitioner’s Second Habeas Petition be dismissed as
impermissibly successive because Petitioner failed to obtain authorization from the
Eleventh Circuit before filing the petition. Petitioner did not file objections to the
R&R.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Petitioner did not file
objections to the R&R, and the Court thus reviews it for plain error.
B.

Analysis

“A state prisoner who has previously filed a § 2254 petition in federal court
must obtain authorization from [the Eleventh Circuit Court of Appeals] before
filing a ‘second or successive’ collateral attack on the same conviction.”
Philistin v. Warden, ___ Fed. App’x ___, 2017 WL 3129105, at *1 (11th Cir.
July 24, 2017). “Without authorization, the district court lacks jurisdiction to
consider a successive § 2254 petition and must dismiss the claims presented
therein.” Id.
The Magistrate Judge found that this action should be dismissed because
Petitioner “failed to obtain the necessary authorization” from the Eleventh Circuit
to file his Second Habeas Petition, and “the District Court [thus] lacks subject
matter jurisdiction to consider the present petition.” (R&R at 2). The Court finds
no plain error in the Magistrate Judge’s determination, and this action is dismissed.
See Jeremiah v. Terry, 322 F. App’x 842, 844 (11th Cir. 2009) (“A state prisoner

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may not file a second or successive petition for a writ of habeas corpus in the
district court unless the prisoner has obtained permission from the Court of
Appeals. If a state prisoner files a second or successive § 2254 petition without
this authorization, the district court is required to dismiss the petition for lack of
jurisdiction unless the petitioner has obtained an order authorizing the district court
to consider it.” (citation omitted)).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s

Final Report and Recommendation [4] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED.

SO ORDERED this 11th day of October, 2017.

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