Debow v. Lindamood

Filing 4

ORDER: Petitioner's APPLICATION for Leave to Proceed In Forma Pauperis 2 is GRANTED. Prior to filing a second or successive § 2254 petition, a petitioner must file a motion "in the appropriate court of appeals for an order authoriz ing the district court to consider the application." The Clerk of Court is DIRECTED to TRANSFER this case to the United States Court ofAppeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 and In re Smith. Signed by District Judge Todd J. Campbell on 2/6/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BILLY DeBOW, SR.,
Petitioner,
v.
WARDEN CHERRY LINDAMOOD,
WHITEVILLE CORRECTIONAL FACILITY,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 3:14-cv-00246
Judge Campbell

ORDER
Petitioner Billy DeBow, Sr. has filed a pro se petition under 28 U.S.C. § 2254 to obtain relief from his
1999 first-degree murder conviction (ECF No. 1). The petitioner seeks to proceed in forma pauperis. Because
it appears from the petitioner’s application that he lacks sufficient funds to pay the filing fee, the application
(ECF No. 2) is GRANTED.
In his present petition, DeBow challenges his 1999 conviction in the Sumner County Criminal Court,
Case No. 358-1998, for first-degree murder. He raises claims based on the ineffective assistance of counsel
and the insufficiency of the evidence used to convict him. In 2010, the petitioner brought a § 2254 petition in
this Court challenging the same conviction and raising essentially the same claims: ineffective assistance of
counsel and insufficiency of the evidence. DeBow v. Bell, No. 3:10-cv-01003 (M.D. Tenn. Oct. 21, 2010
(habeas petition)). That petition was denied and dismissed with prejudice on statute of limitations grounds.
Id. (M.D. Tenn. Oct. 28, 2010 (memorandum opinion, ECF No. 3) and Dec. 14, 2010 (order of dismissal, ECF
No. 9)). It therefore appears that the present petition is a second or successive petition within the meaning
of 28 U.S.C. § 2244(b). See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (finding that prior dismissal of
a habeas petition on timeliness grounds rendered a subsequent petition a “second or successive” petition
under § 2244(b)); Altman v. Benik, 337 F.3d 764 (7th Cir. 2003) (prior untimely federal habeas corpus petition
counts as a “prior application” for purposes of the limitations on second or successive petitions). Cf. In re
Cook, 215 F.3d 606, 608 (6th Cir. 2000) (holding that the denial of a habeas claim on the basis that it was
procedurally defaulted constitutes a determination on the merits for purposes of § 2244(b)).
Prior to filing a second or successive § 2254 petition, a petitioner must file a motion “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). In the Sixth Circuit, when a prisoner has filed a second or successive habeas petition in the
district court without first obtaining authorization from the court of appeals, the district court must transfer the
case to the Sixth Circuit for consideration in accordance with standards set forth in § 2244(b). In re Smith, 690
F.3d 809, 809–10 (6th Cir. 2012). Absent authorization from the Sixth Circuit, this Court lacks jurisdiction to
consider the merits of the claims in a second or successive petition. Burton v. Stewart, 549 U.S. 147, 153
(2007).
Accordingly, the Clerk of Court is DIRECTED to TRANSFER this case to the United States Court of
Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 and In re Smith.
It is so ORDERED.

Todd Campbell
United States District Judge

-2-