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Case No. 1:18-cv-00006-KGB/BD (E.D. Ark. Sep. 4, 2018)

Case No. 1:18-cv-00006-KGB/BD


LEROY H. STEVENSON ADC #093169 PETITIONER v. WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT


The Court has received a Recommended Disposition from United States Magistrate Judge Beth Deere (Dkt. No. 9). Petitioner Leroy H. Stevenson filed a motion for extension of time to file objections to the Recommended Disposition (Dkt. No. 11), which the Court grants. The Court therefore considers Mr. Stevenson's objections (Dkt. No. 12). After careful review of the Recommended Disposition, a de novo review of the record, and a review of all of Mr. Stevenson's objections thereto, the Court adopts the Recommended Disposition (Dkt. No. 9).

Mr. Stevenson objects to the Recommended Disposition in part on the grounds that "he has not previously[,] in any petition, [h]abeas or otherwise prior to the December 11, 2017[,] Petition named Bowie County, Texas[,] as a respondent/defendant," and therefore, according to Mr. Stevenson, his present petition is not a second or successive habeas petition (Dkt. No. 12, at 2). Mr. Stevenson does not, however, contest that he has previously filed a petition for a writ of habeas corpus challenging his conviction or that this Court dismissed that petition. See Stevenson v. Hobbs, No. 5:13-cv-269-KGB-BD, Dkt. No. 17 (E.D. Ark. May 8, 2014) (dismissing Mr. Stevenson's petition for writ of habeas corpus). Assuming without deciding that Mr. Stevenson's present petition raises issues that were not presented in his prior petition, he must still "move in the appropriate court of appeals for an order authorizing the district court to consider the [second or successive] application." 28 U.S.C. § 2244(b)(3)(A) (governing successive habeas corpus applications that present claims not presented in prior applications). Mr. Stevenson presents no evidence that he has moved for such permission or that such permission has been granted. As noted in the Recommended Disposition, this Court cannot hear a second or successive habeas petition without an order from the appropriate court of appeals. Burton v. Stewart, 549 U.S. 147, 152-53 (2007).

The Court adopts the Recommended Disposition as this Court's findings in all respects (Dkt. No. 9). The Court therefore dismisses Mr. Stevenson's petition without prejudice and denies the requested relief (Dkt. No. 1). The Court denies as moot Mr. Stevenson's motion to amend parties (Dkt. No. 5). The Court grants Mr. Stevenson's motion for copies and directs the Clerk of Court to mail to Mr. Stevenson a copy of the docket sheet in this matter, along with a copy of this Order (Dkt. No. 13). To the extent Mr. Stevenson requests copies of individual filings in this matter, he should submit a separate request and indicate by docket number the filings of which he would like copies.

The Court will not issue a certificate of appealability because Mr. Stevenson has not made a substantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (determining that a substantial showing of the denial of a federal right requires a demonstration that 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.).

So ordered this the 4th day of September, 2018.


Kristine G. Baker

United States District Judge