WILLIAM E. CASSADY, Magistrate Judge.
Thomas Curtis Hines, a state prisoner presently in the custody of respondent, has petitioned this Court for federal 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 with prejudice because the instant petition is an unauthorized second or successive habeas corpus application under 28 U.S.C. § 2244(b)(3)(A).
On December 5, 1983, Hines was convicted of possession of burglar's tools in the Circuit Court of Mobile County, Alabama and was sentenced to a 30-year term of imprisonment pursuant to Alabama's Habitual Felony Offender Act, Ala.Code § 13A-5-9(b)(1). (Compare Doc. 5, at 2 with Doc. 12, Exhibit 5, at 1.) Hines' conviction and sentence were affirmed by the Alabama Court of Criminal Appeals in an unpublished memorandum opinion issued on April 10, 1984. Hines v. State, 453 So.2d 7 (Ala.Crim.App. 1984) (table). That court ultimately issued a certificate of final judgment of affirmance on May 1, 1984. (See Doc. 12, Exhibit 1, at 2.).
Hines filed a petition for writ of error coram nobis in the Circuit Court of Mobile County on May 7, 1984. (See id., at 3.) Therein, petitioner alleged that he was denied the effective assistance of counsel and, as well, that he was denied his constitutional right to a speedy trial. Hines v. State, 461 So.2d 50 (Ala.Crim.App. 1984). The trial court dismissed Hines' writ without an evidentiary hearing. Id. The Alabama Court of Criminal Appeals found no error with the trial court's summary dismissal of petitioner's speedy trial claim but found his allegations of ineffective assistance of trial and appellate counsel sufficient to warrant an evidentiary hearing; therefore, the cause was remanded to the trial court for such a hearing. Id.
Hines v. State, 489 So.2d 9 (Ala.Crim.App. 1986).
Hines filed a petition seeking federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, in this Court on or about April 10, 1986, collaterally attacking his conviction and sentence. (Compare Doc. 5, at 56 with Doc. 12, Exhibit 7.) As reflected in the instant petition, in petitioner's previous federal habeas attack this Court specifically rejected his claim that his trial attorney provided ineffective assistance of counsel in failing to object to the State's lack of notice of its intent to treat him as a habitual offender or to object to the State's failure to meet its burden of proof under Ala.R.Crim.P. 26.6(b)(3). (See Doc. 5, at 10.) The basis for this Court's rejection of these allegations of ineffective assistance of trial counsel was the fact that Hines' admission of his prior convictions during his trial testimony waived the notice requirement under Rule 26.6(b)(3). (See id.) This Court ultimately closed its file on December 5, 1998. (See Doc. 12, Exhibit 7.)
Hines filed his first Rule 32 petition in the Circuit Court of Mobile County, Alabama on May 9, 2003, alleging his sentence exceeded the maximum authorized by law since the trial court lacked jurisdiction to impose a 30-year sentence based on a conviction of a Class C felony where the state did not invoke the provisions of the HFOA prior to trial, after conviction, or before sentencing and, further, that due process and the interests of justice required a redetermination of his ineffective assistance of counsel claim. (See Doc. 5, Exhibit B, MEMORANDUM, at 2.) Without requiring an answer from the State, the trial court summarily dismissed Hines' petition on May 21, 2003. (See id.) The Alabama Court of Criminal Appeals affirmed the trial court's summary dismissal by unpublished memorandum opinion issued on September 19, 2003. Hines v. State, 886 So.2d 190 (Ala.Crim.App. 2003) (table).
(Doc. 5, Exhibit B, at 2-3.) Petitioner's application for rehearing was denied on October 10, 2003, Hines v. State, 897 So.2d 1251 (Ala.Crim.App. 2003) (table), and his petition for writ of certiorari was denied on January 16, 2004, Ex parte Hines, 899 So.2d 317 (Ala. 2004) (table).
Thereafter, although not mentioned in the present habeas corpus petition (see Doc. 5, at 4-5), Hines filed his second Rule 32 petition in the Circuit Court of Mobile County, Alabama on December 18, 2006. (Doc. 12, Exhibit 4.) The trial court granted the State's motion to dismiss the Rule 32 petition by order dated March 6, 2007, and there is nothing to indicate that Hines appealed the denial of this dismissal to Alabama's appellate courts. (See id.)
Hines filed his third Rule 32 petition in the Mobile County Circuit Court on March 9, 2010. (See Doc. 12, Exhibit 5, MEMORANDUM, at 1.) The trial court summarily denied the petition and Hines appealed. (Id.) The Alabama Court of Criminal Appeals affirmed the circuit court's judgment by unpublished memorandum decision entered on August 13, 2010. (Id. at 2.)
(Id. at 1-2 (internal citations omitted).) It is clear that the Alabama Court of Criminal Appeals overruled Hines' application for rehearing, since the Alabama Supreme Court denied his petition of writ of certiorari, without written opinion, on October 8, 2010 (Doc. 12, Exhibit 6).
Soon thereafter, Hines filed an application in the Eleventh Circuit Court of Appeals seeking an order authorizing this Court "to consider a second or successive petition for a writ of habeas corpus." (Doc. 12, Exhibit 8, Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b), at 1.) The Eleventh Circuit entered an opinion in January of 2011 denying Hines' application for leave to file a second or successive petition, therein specifically finding that he had "failed to make a prima facie showing of the existence of either of the grounds set forth in § 2244(b)(2)[.]" (Id. at 2.)
(Id.)
Undaunted, and specifically ignoring the Eleventh Circuit's decision denying his application to file a second or successive petition in this Court, Hines did just that; initially, the petitioner filed on an improper form on November 15, 2011 (Doc. 1) and, on January 4, 2012, he filed his petition on this Court's form (Doc. 5). The claims petitioner seeks to raise in the instant petition appear to be both similar and different from those raised in his first federal habeas petition (compare Doc. 5, at 10-55 with Doc. 13, at 13-14 ("[T]he Respondent states on page (5) of its answer that Petitioner Habeas Corpus should be dismissed under 28 U.S.C. 2244(b)(3)(A) because it is a `successive' petition requiring authorization and until given this Court is without jurisdiction to hear petitioner's claims[,] ... which position would be correct if petitioner[`s] current claims was identical as those raised in his prior petition. They are not.")), but, undoubtedly are similar to those raised in the Eleventh Circuit and about which the appellate court denied Hines' application for leave to file a second or successive petition.
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 ("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.'" Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), quoting 28 U.S.C. § 2244(b)(3)(A), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). "[T]he petitioner first must obtain an order from the court of appeals authorizing the district court to consider" a second or successive petition because "[w]ithout authorization, the district court lacks jurisdiction to consider [such] second or successive petition." United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (citations omitted); see also Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257, 1259 (11th Cir.) ("Section 2244(b)(3)(A) requires a district court to dismiss for lack of jurisdiction a second or successive petition for a writ of habeas corpus unless the petitioner has obtained an order authorizing the district court to consider it."), cert. denied sub nom. Tompkins v. McNeil, 555 U.S. 1161, 129 S.Ct. 1305, 173 L.Ed.2d 482 (2009).
The instant § 2254 petition, filed on the appropriate form on January 4, 2012, is clearly a second or successive petition, and while Hines filed an application with the Eleventh Circuit Court of Appeals seeking an order authorizing this Court to consider this second/successive petition (see Doc. 12, Exhibit 8), he failed to obtain specific authorization from that court to file another habeas corpus petition, see, e.g., Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) ("[The movant must first file an application with the appropriate court of appeals for an order authorizing the district court to consider it."), thereby depriving this Court of jurisdiction to consider his request for relief, compare id. ("Without authorization, the district court lacks jurisdiction to consider a second or successive petition.") with Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.) ("Under 28 U.S.C. § 2244(b)(3)(A), the district court lacked jurisdiction to consider Appellant Hill's request for relief because Hill had not applied to this Court for permission to file a second habeas petition."), cert. denied, 520 U.S. 1203, 117 S.Ct. 1571, 137 L.Ed.2d 714 (1997). That this Court is without jurisdiction to consider the instant petition is now resolute given the Eleventh Circuit's January, 2011 panel decision denying Hines' application for leave to file a second or successive petition. (Doc. 12, Exhibit 8.) Accordingly, this cause is due to be dismissed, with prejudice, for want of jurisdiction pursuant to 28 U.S.C. § 2244(b)(3)(A). Compare Tompkins, supra, 557 F.3d at 1259 ("Section 2244(b)(3)(A) requires a district court to dismiss for lack of jurisdiction a second or successive petition for a writ of habeas corpus unless the petitioner has obtained an order authorizing the district court to consider it.") with United States v. Holt, supra, 417 F.3d at 1175 ("Without authorization, the district court lacks jurisdiction to consider a second or successive petition."); Bell v. Secretary Department of Corrections, 2011 WL 6968035, *2 (N.D. Fla. Sept. 23, 2011) (recognizing that a district court may dismiss a petition for lack of jurisdiction on the ground that it is an unauthorized second or successive petition), report & recommendation adopted by 2012 WL 71721 (N.D. Fla. Jan. 9, 2012); and Simmons v. Cummins, 2010 WL 582091, *2 (M.D. Ala. Jan. 15, 2010) ("It is clear from the pleadings filed herein that Simmons has not received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to consider a successive application for habeas relief. `Because this undertaking [is Simmons'] second habeas corpus petition and because he had no permission from [the Eleventh Circuit] to file a second habeas petition, ... the district court lack[s] jurisdiction to grant the requested relief.'"), report & recommendation adopted by 2010 WL 653691 (M.D. Ala. Feb. 17, 2010).
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2254, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being denied on procedural grounds without reaching the merits of the underlying constitutional claims, "a COA should issue [only] when the prisoner shows ... that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) ("Under the controlling standard, a petitioner must `sho[w] 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."'"). Inasmuch as the instant petition is unquestionably a second or successive petition and the Eleventh Circuit has specifically denied Hines' application for leave to file a second or successive petition (Doc. 12, Exhibit 8), a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition for want of jurisdiction or that Hines should be allowed to proceed further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.").
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by petitioner, he may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report & recommendation adopted, 2011 WL 3241580 (S.D. Ala. July 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report & recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).
The Magistrate Judge recommends that Thomas Curtis Hines' petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be dismissed with prejudice because the instant petition is an unauthorized second or successive habeas corpus application under 28 U.S.C. § 2244(b)(3)(A). Hines is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.
The instructions which follow the undersigned's signature contain important information regarding objections to the report and recommendation of the Magistrate Judge.
1. Objection. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
