Opinion
CA 00-0829-CB-C
December 8, 2000
REPORT AND RECOMMENDATION
Leroy Smith, a state prisoner presently in the custody of the respondent, has petitioned this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that the instant petition be dismissed due to petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A).
Respondent's motion for an enlargement of time, filed on November 20, 2000 (Doc. 8), is GRANTED.
FINDINGS OF FACT
1. Smith was convicted in the Circuit Court of Choctaw County, Alabama on April 30, 1973, of murder and was sentenced to life imprisonment. (Doc. 1, at 2-3) Petitioner did not directly attack his conviction and sentence but did collaterally attack his conviction and sentence. ( Id. at 3-5) Smith filed an error coram nobis petition in 1975 in the Circuit Court of Choctaw County, Alabama and then some thirteen years later, in August of 1998, filed a Rule 32 petition in the Circuit Court of Choctaw County. ( Id. at 4-5)2. Smith filed his first federal habeas corpus petition in this Court, pursuant to 28 U.S.C. § 2254, sometime during the latter part of 1999. ( See Doc. 9, Exhibits RX1-RX2) In June of this year, United States Magistrate Judge Bert W. Milling, Jr. recommended that Smith's petition be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d) ( id., Exhibit RX1) and on July 10, 2000 Senior United States District Judge W. B. Hand adopted the report and recommendation as the opinion of the Court and entered judgment in favor of the respondent, Gwendolyn Mosley ( id., Exhibit RX2)
3. Petitioner filed written notice of appeal on July 19, 2000, Smith v. Mosley, CA 99-1102-BH-M, Doc. 24, which was construed by this Court as a motion for a certificate of appealability and denied, id., Doc. 25. A subsequent motion for a certificate of appealability was also denied by the Court. Id., Docs. 26 27. A certificate of readiness of record on appeal was entered by the Clerk of Court on August 9, 2000. Id., COR. Smith voluntarily dismissed his appeal on October 3, 2000. Id., Doc. 28 ("Pursuant to the appellant's motion for voluntary dismissal, Fed.R.App.P. 42 and 11th Cir. R. 42-1(a), the above referenced appeal was duly entered dismissed this 3rd day of October, 2000.").
CONCLUSIONS OF LAW
1. Pursuant to 28 U.S.C. § 2254 and 2244(b)(3)(A), as amended by §§ 105 and 106 of the Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA"), "`[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.'" Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), quoting 28 U.S.C. § 2244(b)(3)(A), cert. denied, ___ U.S. ___, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000).
2. The instant petition, filed on September 13, 2000 pursuant to 28 U.S.C. § 2254, is clearly a second/successive petition yet there is nothing to indicate that petitioner has filed an application with the Eleventh Circuit Court of Appeals seeking an order authorizing this Court to consider this petition. Because petitioner has not applied to the Eleventh Circuit Court of Appeals for permission to file a second habeas petition, this Court lacks jurisdiction to consider Smith's request for relief Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.), cert. denied, 520 U.S. 1203, 117 S.Ct. 1571, 137 L.Ed.2d 714 (1997).
3. The undersigned recommends that this Court dismiss Smith's present habeas petition due to his failure to comply with § 2244(b)(3)(A), rather than transfer same to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 1631, compare Guenther, supra, 173 F.3d at 1330-1331 (refusing to decide whether § 1631 authorizes a transfer) with In re Green, 215 F.3d 1195, 1196 (11th Cir. 2000) (implicitly recognizing that § 1631 authorizes a transfer), because his petition, "in addition to being second or successive, [is] indisputably time-barred." Guenther, 173 F.3d at 1331.
CONCLUSION
The Magistrate Judge recommends that the present habeas corpus petition be dismissed due to petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A).