Burnett v. Chatman

Filing 8

REPORT AND RECOMMENDATIONS that the 1 MOTION for Leave to Proceed in forma pauperis be denied, that the 2 Petition for Writ of Habeas Corpus be dismissed, and that the civil action be closed. Objections to R&R due by 1/7/2010. Signed by Judge W. Leon Barfield on 12/18/09. (thb) Modified on 12/18/2009 (thb).

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION ANTHONY BURNETT, Petitioner,
V.

CV 109-152

BRUCE CHATMAN, Warden, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner brought the instant petition for writ ofhabeas corpus pursuant to 28 U.S.C. § 2254 in the Middle District of Georgia. The case was subsequently transferred to this District and is before the Court for initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases) Petitioner attempts to challenge his 1998 conviction for murder in the Superior Court of McDuffie County, Georgia. Petitioner is well-known to the Court as a serial tiler of habeas petitions. The instant case is Petitioner has made at least ten attempts, that his Court is aware of, to challenge his state conviction. See Burnett v. Head, CV 105115, doc. no. 25, p. 1 (S.D. Ga. Feb. 22, 2006)(citing Burnett v. Head, CV 104-195, doc. 'Rule 4 of the Rules Governing Section 2254 Cases states in pertinent part: The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. Ifit plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, thejudge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

no. 4, adopted by doc. no. 6 (S.D. Ga. Mar. 2, 2005) (discussing Petitioner's filing history)). As Petitioner has been repeatedly informed by both this Court and the Eleventh Circuit, the relevant portion of the statute governing second or successive habeas corpus applications states that "[bjefore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A) (emphasis added).2 Thus, § 2254 petitioners must "obtain[] authorization in the court of appeals before filing a second or successive [habeas corpus] application... Guenther v. Holt, 173 F.3c1 1328, 1332 (11 th Cir. 1999). Without this authorization, the district court correctly dismisses second and successive habeas corpus applications. In re

2 Section 2244 is applicable to provisions of § 2244:

§

2254 applications by virtue of the following

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)

(emphasis added).
OA

Medina, 109 F.3d 1556, 1564 (11 th Cir. 1997) (per curiarn). Petitioner does not state that he has either sought or been granted permission to file a successive § 2254 petition in this Court. Without authorization from tho Eleventh Circuit Court of Appeals, this Court lacks jurisdiction to consider Petitioner's claims. Accordingly, based 011 an initial review of the petition as required by Rule 4 of the Rules Governing Section 2254 Cases, the Court FINDS that Petitioner has once again filed a successive application for a writ of habeas corpus without first obtaining the requisite authorization from the Eleventh Circuit Court of Appeals. Therefore, the Court REPORTS and RECOMMENDS that the motion to proceed in forma pauperis be DENIED (doc. no. 1), that this case be DISMISSED, and that this civil action be CLOSED. SO REPORTED AND RECOMMENDED this L'4s.day of December, 2009, at Augusta, Georgia.

W. LEON'RFIELD UNITED STATES MAGIS RATE JUDGE

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