Opinion
Civil Action No. 3:20CV172
03-27-2020
TYRELL L. JOHNSON, Petitioner, v. HAROLD W. CLARKE, Respondent.
MEMORANDUM OPINION
Tyrell L. Johnson, a Virginia inmate proceeding pro se, submitted this 28 U.S.C. § 2254 Petition. (ECF No. 1.) Johnson challenges his March 2007 first-degree murder and firearm convictions in the Circuit Court for the City of Norfolk, Virginia. The Court previously denied another 28 U.S.C. § 2254 petition by Johnson challenging these convictions. See Johnson v. Johnson, No. 3:10CV502, 2011 WL 2708328, at *1-10 (E.D. Va. 2011).
The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of the district courts to hear second or successive applications for federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a "gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996) (internal quotation marks omitted). Specifically, "[b]efore 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). The Court has not received authorization from the United States Court of Appeals for the Fourth Circuit to file the present § 2254 Petition. The action, therefore, will be DISMISSED without prejudice for want of jurisdiction. Johnson's outstanding motions (ECF No. 2-4) are DENIED.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Because Johnson fails to satisfy this standard, a certificate of appealability will be DENIED.
An appropriate Final Order will accompany this Memorandum Opinion.
/s/_________
John A. Gibney, Jr.
United States District Judge Date: 27 March 2020
Richmond, Virginia
FINAL ORDER
In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that:
1. The action is DISMISSED without prejudice for want of jurisdiction;
2. Johnson's outstanding motions (ECF Nos. 2-4) are DENIED; and,
3. A certificate of appealability is DENIED.
Should Johnson desire to appeal, a written notice of appeal must be filed within thirty (30) days of the date of entry hereof. Failure to file a written notice of appeal within that period may result in the loss of the ability to appeal.
The Clerk is DIRECTED to send the Memorandum Opinion and Final Order to Johnson.
And it is so ORDERED. Date: 27 March 2020
Richmond, Virginia
/s/_________
John A. Gibney, Jr.
United States District Judge