Smith v. Mosley

Full title: LEROY SMITH, Petitioner, vs. GWENDOLYN C. MOSLEY, Respondent

Court: United States District Court, S.D. Alabama, Southern Division

Date published: Feb 16, 2001

CA 00-0829-CB-C (S.D. Ala. Feb. 16, 2001)

Opinion

CA 00-0829-CB-C

February 16, 2001

ORDER

CHARLES R. BUTLER, JR., Chief Judge

This matter is before the Court on the "Report And Recommendation" (Doc. 10) of United States Magistrate Judge William E. Cassady, presiding, and, Petitioner's "Statement of Objection To Magistrate Recommendation" (Doc. 13).

On December 8, 2000, Judge Cassady issued a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and LOCAL RULE 72.2(c)(4), recommending Petitioner's motion for habeas corpus relief, pursuant to 28 U.S.C. § 2254, be dismissed due to Petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A). (Doc. 10 at 1). Specifically, Judge Cassady determined that dismissal of the Petitioner's present habeas petition on these grounds was appropriate because the Petitioner's § 2254 petition,¹ filed on September 13, 2000:

1 As noted in the Report and Recommendation, 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, provides that "`[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.'" (Doc. 10 at 3 (citing Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999)).

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.

Id. at 3.

Petitioner's objections assert that Judge Cassady failed "to considerall of the rules governing second or successive' petitions,² the misapplication of the U.S. Court of Appeals (11th Cir.) holdings on the subject of `successive petition', and the failure to follow United States Supreme Court holdings on the issue of successive petitions." (Doc. 13 at 1) (emphasis in original). First, Petitioner argues that Judge Cassady's reliance on Guenther v. Holt, 173 F.3d 1328 (11th Cir. 1999), is misplaced because the Eleventh Circuit reasoned that "because all the prior applications had been dismissed and denied with prejudice, the presence of those prior applications made any subsequent filing successive." Id. at 3 (citing to Guenther, 173 F.3d at 1329). Petitioner claims that his case is distinguishable from Guenther, in that his "alleged prior petition was not dismissed and denied with prejudice as the 11th Circuit required," and that Guenther dealt with multiple prior applications for habeas relief filed in state and federal court, "a condition that does not exist in this case, notwithstanding Guenther had been cited for abuse of the writ." Id.

2 Petitioner's first argument in his objections, states that before § 2244(b)(3)(A) can be applied to this case, § 2244(a) has to be complied with, in that "[t]he plain language of § 2244(a) clearly requires the legality of the applicants detention to have been determined in a prior application for habeas corpus relief, before § 2244(b)(3)(A) becomes applicable. . . ." Id. at 2 (emphasis in original). Petitioner argues that to determine the legality of his detention in the prior petition, "it must have been considered on the merits," noting that his was "dismissed on procedural grounds." Id. at 2-3. Petitioner thus concludes that because his petition was dismissed on procedural grounds, it is not a decision on the merits as "the contents of the petition has not been given any consideration" so "it cannot be a determination of the legality of anything complained of within." Id. at 3. However, this exact issue has already been before this Court in the form of "Petitioner's Cross Motion" (Doc. 11), filed in response to the Respondent's motion to dismiss on December 11, 2000, and upon which Judge Cassady has already ruled and denied. Indeed, Judge Cassady concluded that the Petitioner "makes no argument . . . that convinces the undersigned that the report and recommendation [of December 8, 2000] need be modified in any manner." (Doc. 12). As such, this Court will not address this portion of Petitioner's objections further.

Here, in contrast to what Petitioner claims, his prior habeas petition was in fact denied and dismissed. Indeed, United States Magistrate Judge Bert W. Milling, Jr., presiding, recommended his petition be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d). Moreover, on July 10, 2000, Senior United States District Judge W. B. Hand, adopted Judge Milling's report and recommendation as the opinion of the Court and entered judgment in favor of the Respondent. As such, Petitioner's characterization of Guenther is not persuasive.

Additionally, Petitioner contends that Judge Cassady's reliance on Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997) is misplaced "because that case dealt with a situation where the prior petition had, undisputedly, been denied on the merits." Id. at 4. This Court disagrees with Petitioner and finds that Judge Cassady's reliance upon the aforementioned cases was indeed proper as there is no language in Hill supporting this position.

Secondly, Petitioner argues that Judge Cassady's recommendations and conclusions fail to comport with the United States Supreme Court's standard in Slack v. McDaniel, 529 U.S. 473 (2000). (Doc. 13 at 4). Petitioner contends that Slack required that before an application forhabeas relief can be dismissed as a second or successive petition, the prior application must have been decided on the merits. Id. Petitioner claims that his prior habeas application was dismissed on procedural grounds and none of the issues and argument presented in the petition were addressed — contending that his case does not satisfy the requirements of being a second or successive petition and that "because the applicant has not had any petition for habeas corpus relief considered on the merits in this or any other court, state or federal."Id. at 4-5. Petitioner's interpretation of Slack, however, is misguided. Notably, Slack held more specifically, that when a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, "a COA should issue when [and if] the petitioner shows, at least, 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." See Slack, 529 U.S. at 484 (emphasis added). Moreover, the Supreme Court continued, adding that:

[w]here a plain procedural bar is present [as is the case here] 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. In such a circumstances, no appeal would be warranted.

Id. (emphasis added).

CONCLUSION

In light of the foregoing, this Court ADOPTS the recommendation of United States Magistrate Judge Cassady, made under 28 U.S.C. § 636(b)(1)(B), as the opinion of this Court, after due and proper consideration of all portions of this matter deemed relevant to the issues raised and after a de novo determination of those portions of the recommendation to which objection was made by the Petitioner. (Doc. 13).