IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

 __________________________________

JAMES ARTHUR CULBRETH, #214 203 *

Petitioner, *

 v. * 2:06-CV-690-MEF

 (WO)

GWENDOLYN MOSLEY, WARDEN, et al., *

Respondents. *

 __________________________________

RECOMMENDATION OF THE MAGISTRATE JUDGE

Petitioner, James Culbreth, is currently confined at the Easterling Correctional Facility

in Clio, Alabama. He files this petition for writ of habeas corpus seeking once again to

challenge his 2000 convictions for first degree sodomy and enticing a child entered against

him by the Circuit Court for Montgomery County, Alabama. Petitioner is serving a life

sentence for these convictions. 

The instant petition represents Petitioner’s second attempt at challenging the merits

of his 2000 convictions. By order filed April 27, 2005 this court denied and dismissed on

the merits Petitioner’s first application for habeas corpus relief in which he challenged his

2000 first degree sodomy and enticing a child convictions. See Culbreth v. Price, Civil

Action No. 2:03-CV-218-MEF (M.D. Ala. 2005).

I. DISCUSSION 

 Petitioner may file a second or successive habeas corpus petition only if he has moved

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28 U.S.C. § 2244(b)(3)(B) provides, as amended, that: "[A] motion in the court of appeals for an

order authorizing the district court to consider a second or successive application shall be determined by a

three-judge panel of the court of appeals."

 228 U.S.C. § 2244(b)(3)(A) provides that "[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." (emphasis added).

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Under the amendments to 28 U.S.C. § 2254, a second or successive petition must be certified as

provided in § 2244 by a panel of the appropriate court of appeals to contain--(1) newly discovered

evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the

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the appropriate circuit court for an order authorizing the district court to consider his

application. See 28 U.S.C. § 2244(b)(3);1

 Felker v. Turpin, 83 F.3d 1303, 1305-07 (11th

Cir. 1996). The pending application is a successive one. Before this court may consider the

pending petition, the United States Court of Appeals for the Eleventh Circuit must enter an

order authorizing this court to consider Petitioner's application for habeas corpus relief. §

2244(b)(3)(A).2

 

It is clear from the petition filed in this case that Petitioner has not received an order

from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive

application for habeas corpus relief. “Because this undertaking would be Petitioner’s second

habeas corpus petition and because he ha[s] no permission from [the Eleventh Circuit] to file

a second habeas petition, . . . the district court lack[s] jurisdiction to grant the requested

relief.” Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001).

In light of the foregoing, it is clear that this court lacks jurisdiction to consider

Petitioner's successive petition for habeas corpus relief and it is, therefore, due to be

summarily dismissed.3

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offense, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

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II. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the

application for habeas corpus relief be DISMISSED as this court is without jurisdiction to

review the instant petition.

 It is further

ORDERED that the parties are DIRECTED to file any objections to the said

Recommendation on or before August 27, 2006. Any objections filed must specifically

identify the findings in the Magistrate Judge's Recommendation to which a party objects.

Frivolous, conclusive or general objections will not be considered by the District Court. The

parties are advised that this Recommendation is not a final order of the court and, therefore,

it is not appealable.

Failure to file written objections to the proposed findings and recommendations in the

Magistrate Judge's report shall bar the party from a de novo determination by the District

Court of issues covered in the report and shall bar the party from attacking on appeal factual

findings in the report accepted or adopted by the District Court except upon grounds of plain

error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein

v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of

Prichard, 661 F.2d 1206 (11th Cir. 1981) ( en banc), adopting as binding precedent all of the

decisions of the former Fifth Circuit handed down prior to the close of business on

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September 30, 1981.

Done, this 14th day of August, 2006.

/s/ Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE

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