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The original Report and Recommendation (Doc. 15) has been

amended to address the issue of a certificate of appealability in

compliance with Rule 11(a) of the Rules Governing 2254 Cases. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLES ROBINSON, :

Petitioner, :

vs. : CIVIL ACTION 09-00488-WS-B

J. C. GILES, :

Respondent. :

AMENDED REPORT AND RECOMMENDATION1

This is an action brought pursuant to 28 U.S.C. § 2254 by an

Alabama prison inmate. This action has been referred for report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule

72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases,

and is now ready for consideration. The record is adequate to

determine Petitioner’s claim; thus, no federal evidentiary hearing

is required. Kelley v. Sec’y for Dep’t of Corrs., 377 F.3d 1317,

1333-35 (11th Cir. 2004), cert. denied, 545 U.S. 1149 (2005). Upon

careful consideration, it is recommended that the petition be

dismissed as a successive petition under 28 U.S.C. § 2244(b)(3)(A)

because the Court lacks jurisdiction to consider it.

I. NATURE OF PROCEEDINGS

Petitioner was convicted of heat-of-passion manslaughter in

the Circuit Court of Mobile County, Alabama, in April 2001. He

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Robinson v. State, 851 So. 2d 635 (Ala. Crim. App. 2001).

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Question 14B on the court-provided form for a habeas

petition under 28 U.S.C. § 2254 asks: “Have you previously filed

a habeas corpus petition attacking this present conviction in

this or any other federal court?” Petitioner checked the space

for “No.” (Doc. 1, p. 9).

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received a sentence of ninety-nine (99) years imprisonment,

pursuant to the Alabama Habitual Felony Offender Act. (Docs. 1; 14,

Ex. C). Petitioner’s conviction and sentence were affirmed on

appeal in an unpublished memorandum opinion by the Alabama Court of

Criminal Appeals on October 19, 2001.2 (Doc. 14). Rehearing was

denied by the appellate court on November 9, 2001. Petitioner’s

petition for writ of certiorari was quashed by the Alabama Supreme

Court on August 16, 2002, and the Alabama Court of Criminal Appeals

issued its certificate of judgment on that same day. (Id.)

On March 5, 2003, Petitioner filed a habeas petition in this

Court, namely Robinson v. Culliver, CA No. 03-00135-BH-B.3

Petitioner raised the following claims in his 2003 petition:

(1) the trial court erred in refusing to allow the

defense to introduce into evidence the tape recorded

prior inconsistent statement of the prosecution’s star

witness, thus rendering his trial fundamentally unfair;

and (2) the trial court’s erred in refusing to allow

defense counsel to question the prosecution’s star

witness concerning the existence of outstanding arrest

warrants against him violated his confrontation rights

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under the Sixth Amendment, thus rendering his trial

fundamentally unfair.

(Doc. 14, Ex. A). By Order dated April 4, 2005, the District Court

adopted the undersigned Magistrate Judge’s Report and

Recommendation, which determined that Petitioner’s request for

habeas relief should be denied, and entered judgment dismissing

Petitioner’s habeas petition. (CA No. 03-00135-BH-B, Docs. 11, 12).

On June 13, 2008, Petitioner filed a Rule 32 petition, which

was summarily denied by the circuit court. (Docs. 1, 14). In his

Rule 32 petition, Petitioner alleged that his sentence was illegal

because, according to Petitioner, one of the prior convictions used

to enhance his sentence was a misdemeanor and should not have been

used for sentence enhancement. See (Doc. 14, Ex. A). Petitioner

appealed the denial, and the Alabama Court of Criminal Appeals

affirmed the trial court’s decision, by unpublished memorandum

opinion, on June 19, 2009. (Id.) Petitioner sought a rehearing,

however, his application for rehearing was overruled on July 17,

2009, by the Alabama Court of Criminal Appeals. (Doc. 14, Ex. D).

The record does not reflect, and Petitioner does not allege, that

he sought certiorari review with the Alabama Supreme Court.

Petitioner filed the instant habeas petition on July 31, 2009.

(Doc. 1). He raises one claim in this petition. Petitioner claims

that the trial court improperly allowed the State to use prior

misdemeanors to enhance his sentence. (Id. at 7). Petitioner

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Respondent further asserts that this petition should be

dismissed because Petitioner’s claim is procedurally defaulted in

this Court and barred by the one-year limitation period set forth

in the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C.

Section 2244(d)(1). (Doc. 14). Since Petitioner’s petition is

clearly successive, and as a result, this Court lacks

jurisdiction to review this action, the Court will not address

Respondent’s procedural default and statute of limitations

arguments.

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asserts this claim was raised in a Rule 32 petition. (Id.) 

Respondent contends that the instant habeas petition should be

dismissed because, having previously filed a petition for habeas

relief in this Court, Petitioner was required to apply to the

Eleventh Circuit Court of Appeals for leave in order to pursue the

instant successive habeas petition. According to Respondent, this

Court lacks jurisdiction to review this petition pursuant to 28

U.S.C. § 2244(b)(3)(A) without authorization from the Eleventh

Circuit Court of Appeals. (Doc. 14, p. 6).4

II. ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996

(“ADEPA”) added the provision under 28 U.S.C. §2244(b)(3)(A) which

requires 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.’”

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 (2000).

As noted supra, Petitioner’s first habeas petition was filed

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The undersigned further observes that there are no

circumstances present in this case which “would entitle

[Petitioner] in the interest of justice to transfer [pursuant to

28 U.S.C. § 1631] or stay...because the [one year] limitations

period had already expired before he filed” the instant habeas

action. Guenther v. Holt, 173 F. 3d 1328, 130-1331 (llth Cir.

1999).

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on March 5, 2003, and was dismissed with prejudice on April 4,

2005. His current petition, filed on July 31, 2009, is clearly a

successive petition. As such, this Court lacks jurisdiction to

entertain the current petition absent Petitioner first obtaining

permission from the Eleventh Circuit Court of Appeals5. Hill v.

Hopper, 112 F.3d 1088, 1089 (11th Cir.), cert. denied, 520 U.S.

1203 (1997). Petitioner does not allege, and the record in this

case does not reflect that Petitioner obtained an order from the

Eleventh Circuit authorizing this Court to consider the instant

petition. U.S. v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005);

Farris v. U.S., 333 F.3d 1211, 1216 (11th Cir. 2003). 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 Petitioner's request for relief.

III. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases,

“[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” Rule 11(a) of the Rules Governing 2254 Cases (December

1, 2009). A certificate of appealability may issue only where “the

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applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a habeas

petition is dismissed on procedural grounds, such as in the instant

case, without reaching the merits of any underlying constitutional

claim, “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, 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 ‘show that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have resolved

in a different manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’”). In the instant

action, Petitioner has not applied to the Eleventh Circuit Court of

Appeals for permission to file this, his second habeas petition,

thus, this Court is without jurisdiction to consider his successive

petition. Farris v. U.S., 333 F.3d 1211, 1216 (11th Cir.

2003)(“Without authorization, the district court lacks jurisdiction

to consider a second or successive petition.”). Under the facts of

this case, a reasonable jurist could not conclude either that this

Court is in error in dismissing the instant petition or that

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Petitioner should be allowed to proceed further. Slack, 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.”). Accordingly,

the undersigned recommends that the Court conclude that no

reasonable jurist could find it debatable whether the Petitioner’s

petition should be dismissed; thus, he is not entitled to a

certificate of appealability.

IV. CONCLUSION

Accordingly, the undersigned 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), and that

Petitioner is not entitled to a certificate of appealability. 

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this the 28th day of January, 2010.

 /S/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen 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 days6 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection. 

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

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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.

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