IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FRANK LEE BACK, : 

Petitioner, : 

v. : CIVIL ACTION 05-0711-WS-M

JERRY FERRELL, : 

Respondent. :

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2254 by an Alabama

inmate which was 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. This action is now ready

for consideration. The state record is adequate to determine

Petitioner's claims; no federal evidentiary hearing is required. 

It is recommended that this habeas petition be denied, that this

action be dismissed, and that judgment be entered in favor of

Respondent Jerry Ferrell and against Petitioner Frank Lee Back on

all claims.

Petitioner was convicted of rape first degree in the Circuit

Court of Mobile County on June 5, 1987 for which he received a

sentence of life in the state penitentiary (Doc. 1, pp. 2-3). 

Appeal was made to the Court of Criminal Appeals of Alabama which

affirmed the conviction and sentence (Doc. 1, p. 3); the Alabama

Supreme Court denied certiorari (Doc. 1, p. 4). Petitioner filed

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a complaint with this Court on December 12, 2005, raising the

following claims: (1) He was denied DNA testing; (2) he is

actually innocent of the crime for which he was convicted (Doc.

1). 

Respondent has argued that this action should be dismissed

because this Court’s review is barred without a certificate from

the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. §

2244(b) as Back has previously filed two federal habeas petitions

(Doc. 9, p. 5). The statute to which Respondent refers states

the following: “Before 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.” 28 U.S.C. § 2244(b)(3)(A). 

The Court first notes that Petitioner failed to complete the

section of his habeas petition which enquired as to whether he

had previously filed another habeas petition on this same

conviction (Doc. 1, p. 10, ¶ 14). Court records, however,

indicate that Petitioner did, in fact, file a petition with this

Court which was denied and dismissed on April 16, 1996 by U.S.

District Court Judge Alex T. Howard, Jr. Beck v. Holt, Civil

Action 93-0043-AH-C (S.D. Ala. April 16, 1996). Petitioner filed

a second petition which was dismissed with prejudice, as he had

failed to apply to the Eleventh Circuit Court of Appeals for

permission to file this action, by U.S. Senior District Judge W.

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B. Hand. Beck v. Ferrell, Civil Action 02-0673-BH-C (S.D. Ala.

March 13, 2003). 

Because Petitioner filed his third habeas petition here,

though he should have first sought authorization with the

Eleventh Circuit Court of Appeals, this Court is without

jurisdiction to rule on it. It is of no moment that Plaintiff

raises a claim of actual innocence (Docs. 1, 8, 9). While a

claim of actual innocence may afford Back an opportunity to

bypass a procedural bar, see Schlup v. Delo, 513 U.S. 298, 324

(1995), it does not do so for a jurisdictional bar. 

Therefore, it is recommended that this habeas petition be

dismissed as this Court does not have jurisdiction to review it.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

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 after being served with

a copy of the recommendation, unless a different time

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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 judge finds that the tapes and original records in

this action 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.

DONE this 30th day of March, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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