Opinion
CIVIL 3:23-CV-00052-TES-CHW
11-03-2023
AVERY BRADFORD, Petitioner, v. Warden TARMARSHE SMITH, Respondent.
Proceedings Under 28 U.S.C. § 2254
Before the U.S. Magistrate Judge
RECOMMENDATION OF DISMISSAL
Charles H. Weigle United States Magistrate Judge
Presently pending before the Court is Respondent's motion to dismiss (Doc. 12) the petition for federal habeas corpus relief (Doc. 1) filed by pro se Petitioner Avery Bradford, an inmate presently incarcerated at Macon State Prison in Oglethorpe, Georgia. In the order directing Respondent to answer the petition, the Court noted that, although it was not definitive from the face of the petition which conviction Petitioner is challenging, the petition was likely successive, as Petitioner had filed an earlier petition in which he sought federal habeas relief, Bradford v. Perry, 3:19-cv-16-CAR-CHW (M.D. Ga. Feb. 13, 2020) (Bradford I). (Doc. 4, p. 1, n. 1). Respondent's motion argues that the petitions arise from the same convictions, and Respondent moves to dismiss the current petition as an improper successive petition because Petitioner did not seek leave to file it from the Eleventh Circuit Court of Appeals. (Doc. 12).
Upon review of the record, including Petitioner's responses, it is now apparent that Petitioner's current petition arises from the same conviction underlying his previously dismissed federal habeas corpus petition. As Respondent highlights, Plaintiff is currently in prison for convictions covering two incident dates, July 10, 2009, and November 28, 2010, the same dates underlying the 2010 Athens-Clarke County indictment challenged in his earlier petition. Compare (Docs. 14-1; 14-3) with (Docs. 1; 20-10, 101-103 from Bradford I). Petitioner's responses to the motion to dismiss do not dispute that his current petition arises from the same case as his previous federal habeas petition (Docs. 15, 16), but he argues that he did not challenge his convictions and sentences for aggravated assault in the previous petition. See (Doc. 16) (“Petitioner did not file a motion for life sentence of aggravated assault. Petitioner file[d] a motion of the act of recidivist.”); compare with (Doc. 6 in Bradford I)(raising issues of similar transaction evidence admitted at trial).
Pursuant to 28 U.S.C. §§ 2254 and 2244, as amended by §§ 105 and 106 of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “[b]efore a second or successive application [for a writ of habeas corpus] 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); see also Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), cert. denied, 528 U.S. 1085 (2000).
The instant Petition is considered successive within the meaning of § 2244(b). See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009) (noting that “[l]ater habeas petitions attacking the same judgment that was attacked in a prior petition tend to be labeled successive and must meet the requirements for authorization under § 2244”). Challenging a different portion of his conviction or sentence does not excuse Petitioner from having to seek leave before filing a successive petition. It does not appear, and Petitioner does not allege, that he has received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this Court to consider a successive habeas petition for this conviction. Without such an order, the Court lacks jurisdiction to consider the successive claims. See § 2244(b)(3)(A); Gilreath v. State Bd. Of Pardons & Paroles, 273 F.3d 932, 933-34 (11th Cir. 2001) (per curiam).
It is therefore RECOMMENDED that Respondent's Motion to Dismiss (Doc. 12) be GRANTED and the instant Petition be DISMISSED without prejudice to Petitioner's right to file in the Eleventh Circuit a motion for leave to file a second or successive habeas petition pursuant to § 2244(b)(3). The Clerk is DIRECTED to furnish Petitioner with the application form required by the Eleventh Circuit.
“[A] dismissal of a successive habeas petition for lack of subject-matter jurisdiction does not constitute a ‘final order in a habeas proceeding' for purposes of 28 U.S.C. § 2253(c).... Instead, such a dismissal is a ‘final decision' pursuant to 28 U.S.C. § 1291 and a [Certificate of Appealability] is thus ‘unnecessary....'” Bolin v. Sec'y, Fla. Dep't of Corr., 628 Fed.Appx. 728, 730 (11th Cir. 2016) (per curiam) (quoting Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (affirming dismissal of successive habeas petition for lack of subject-matter jurisdiction)). Accordingly, the Court does not need to address whether Petitioner has met the standards for issuance of a Certificate of Appealability.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.