Ingram v. Doe
REPORT AND RECOMMENDATIONS dismissing 1 Petition for Writ of Habeas Corpus and GRANTING 3 MOTION for Leave to Proceed in forma pauperis filed by Darrell Ingram. Objections to R&R due by 8/2/2017. Signed by Magistrate Judge G. R. Smith on 7/19/17. (jlm) (Additional attachment(s) added on 7/19/2017: # 1 Text of Proposed Order) (jlm). Modified on 7/19/2017 (jlm).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
JOHN DOE1, Warden, Georgia State
REPORT AND RECOMMENDATION
Darrell Ingram has filed a Petition for Writ of Habeas Corpus,
under 28 U.S.C. § 2254, alleging (among other things) that the state
prosecutor withheld exculpatory evidence.
Doc. 1 at 16-19.
seeks leave to file his § 2254 petition in forma pauperis (IFP).
Finding him indigent, the Court GRANTS his IFP motion and proceeds
to screen his petition. See Rules Governing § 2254 Cases, Rule 4.
Ingram’s petition does not identify the warden of Georgia State Prison, except
anonymously by his position. See doc. 1 at 1. Ordinarily, the Court would require
the petitioner or the State to provide the Warden’s full name and substitute him as the
proper respondent. Since the Court lacks subject matter jurisdiction to consider
Ingram’s petition, it must be dismissed regardless and determination of the proper
respondent is unnecessary.
Ingram was convicted of felony murder, among other counts, by a
Chatham County, Georgia jury in 2000.
See doc. 1 at 1; see also Ingram
v. State, 276 Ga. 223, 223 n. 1 (2003).
habeas relief in 2014.
He petitioned this Court for
Compare doc. 1 at 1 (noting state indictment
number CR-00-1087), with Ingram v. Williams, CV414-140, doc. 1 at 3
(listing same indictment number).
That petition was dismissed as
untimely (by more than a decade) and unexhausted.
doc. 3 at 3, 5 (S.D. Ga. Jul. 16, 2014), adopted doc. 6 (S.D. Ga. Aug. 27,
Before the Court has jurisdiction to consider his current petition,
Ingram must first “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); see also Nunez v. United States, 96 F.3d 990, 991 (7th
Cir. 1996) (§ 2244 “is an allocation of subject-matter jurisdiction to the
court of appeals.”).
In fact, this Court must dismiss second or successive
petitions without awaiting any response from the government, absent
prior approval by the Court of Appeals.
Tompkins v. Sec’y, Dep’t of
Corrs., 557 F.3d 1257, 1259 (11th Cir. 2009); see also Smalls v St.
Lawrence, 2012 WL 1119766 at * 1 (S.D. Ga. Feb. 27, 2012) (“Because the
. . . petition is successive and petitioner has not sought or received
authorization from the Eleventh Circuit to file it, this Court is not at
liberty to consider it.”).
“This is true even if the latter petition purports
to raise new claims.” Thornton v. Fortniss, 2015 WL 300396 at * 2 (N.D.
Ala. Jan. 22, 2015); see also Patterson v. Sec’y, Fla. Dep’t of Corrs., 849
F.3d 1321, 1325 (11th Cir. 2017) (“Whether a petition is second or
successive depends on the judgment challenged.” (quotes and cite
omitted)); King v. Sec’y, Fla. Dep’t of Corrs., 671 F. App’x 738, 739 (11th
Cir. 2016) (citing Insignares v. Sec’y, Fla. Dept’t of Corr., 755 F.3d 1273,
1279 (11th Cir. 2014)) (“Though [§ 2254 petitioner] purports to raise new
claims, the bar to successive applications is not claim-specific.”).
In that regard, the dismissal of an untimely petition is a decision on
the merits, rendering further petitions successive.
See Murray v.
Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (“We hold that dismissal of a §
2254 petition for failure to comply with the one-year statute of limitations
constitutes an adjudication on the merits that renders future petitions
under § 2254 challenging the same conviction ‘second or successive’
petitions under § 2244(b).”); see also Blocker v. Danforth, 2013 WL
395131 at * 2 n. 4 (S.D. Ga. Jan. 2, 2013) (time-bar dismissal was denial of
§ 2254 petition on the merits).
Because Ingram has filed this petition without prior Eleventh
Circuit approval, this Court is without subject-matter jurisdiction to
Consequently, it should be DISMISSED as successive.
Applying the Certificate of Appealability (COA) standards set forth in
Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009),
the Court discerns no COA-worthy issues at this stage of the litigation, so
no COA should issue.
28 U.S.C. § 2253(c)(1).
And, as there are no
non-frivolous issues to raise on appeal, an appeal would not be taken in
Thus, in forma pauperis status on appeal should likewise be
28 U.S.C. § 1915(a)(3).
This Report and Recommendation (R&R) is submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and
this Court’s Local Rule 72.3. Within 14 days of service, any party may
file written objections to this R&R with the Court and serve a copy on all
parties. The document should be captioned “Objections to Magistrate
Judge’s Report and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for consideration by the
assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648
F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x 542, 545
(11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 19th day of July,
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