IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CARL ARTHUR PERRY, :

AIS 105161,

:

Petitioner,

vs. : CA 05-0710-WS-C

WARDEN RALPH HOOKS, :

:

Respondent.

REPORT AND RECOMMENDATION

Carl Arthur Perry, a state prisoner presently in the custody of the

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 due to petitioner’s failure to comply with 28 U.S.C. §

2244(b)(3)(A).

FINDINGS OF FACT

1. Perry was convicted in the Circuit Court of Mobile County,

Alabama on May 18, 1983, of murder and sentenced to life imprisonment

without the possibility of parole pursuant to Alabama’s Habitual Felony

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Offender Statute on May 24, 1983. See Perry v. Dees, CA 00-0074-CB-C,

Doc. 1, at 2-3. Petitioner directly appealed his conviction and sentence, Perry

v. State, 453 So.2d 762 (Ala. Crim. App. 1984) and also collaterally attacked

same, see, Perry v. Dees, CA 00-0074-CB-C, Doc. 10, at 2-6.

2. Perry filed a petition seeking federal habeas corpus relief in this

Court, pursuant to 28 U.S.C. § 2254, on December 21, 1999, collaterally

attacking his conviction and sentence. See CA 00-0074-CB-C, supra. On

August 3, 2000, the undersigned recommended that the petition be denied as

time-barred pursuant to 28 U.S.C. § 2244(d). See CA 00-0074-CB-C, Doc. 10.

Chief United States District Judge Charles R. Butler, Jr. adopted the

undersigned’s report and recommendation by order entered on August 17,

2000, id. at Doc. 12, and entered judgment that same date dismissing Perry’s

petition for writ of habeas corpus as time-barred, id. at Doc. 13.

3. Petitioner filed written notice of appeal and a request for

certificate of appealability on September 22, 2000. Id. at Doc. 23. This Court

denied the motion for certificate of appealability by order dated September 29,

2000. Id. at Doc. 24. Thereafter, on December 27, 2000, the Eleventh Circuit

Court of Appeals denied Perry’s motion for a certificate of appealability on the

basis that petitioner had “failed to make a substantial showing of the denial of

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1 Presently pending before the undersigned is petitioner’s motion for change of

venue (Doc. 7) and his motion for voluntary dismissal (Doc. 12). In his motion for voluntary

dismissal, Perry seeks dismissal of his motion for change of venue. (Doc. 12, at 2) The Court

GRANTS petitioner’s request in this regard and notes Perry’s withdrawal of his motion for

change of venue. To the extent necessary, this report and recommendation otherwise MOOTS

both motions. 

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a constitutional right.” Id. at Doc. 25. The Eleventh Circuit, on March 21,

2001, reaffirmed its position on reconsideration of this issue. Id. at Doc. 26

(“Appellant’s motion to amend his appeal is DENIED. Upon reconsideration

of this Court’s order dated December 27, 2000, appellant’s motion for a

certificate of appealability is DENIED because appellant has not made the

requisite showing. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).”).

4. Perry filed the instant habeas corpus petition in this Court on

December 12, 2005. (Doc. 1) The respondent filed his answer on January 23,

2006, therein claiming Perry’s federal habeas corpus petition is time-barred

pursuant to 28 U.S.C. § 2244(d). (Doc. 9) The respondent’s reliance on the

statute of limitations defense is no surprise since it was never required to

answer the habeas petition Perry filed in this Court on December 21, 1999.

Perry v. Dees, supra, Doc. 10, at 6 (“The respondent has not been required to

answer the petition.”). Accordingly, the undersigned raises the applicability of

28 U.S.C. § 2244(b)(3)(A) sua sponte.

1

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CONCLUSIONS OF LAW

1. 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 (“ADEPA”), “‘[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).

2. The instant petition, filed on December 12, 2005 pursuant to 28

U.S.C. § 2254, is clearly a 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 Perry’s request for relief. Hill v. Hopper, 112 F.3d 1088, 1089 (11th

Cir.), cert. denied, 520 U.S. 1203, 117 S.Ct. 1571, 137 L.Ed.2d 714 (1997).

3. The undersigned recommends that this Court dismiss Perry’s

present habeas petition due to his failure to comply with § 2244(b)(3)(A),

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rather than transfer same to the Eleventh Circuit Court of Appeals pursuant to

28 U.S.C. § 1631, compare Guenther, supra, 173 F.3d at 1330-1331 (refusing

to decide whether § 1631 authorizes a transfer) with In re Green, 215 F.3d

1195, 1196 (11th Cir. 2000) (implicitly recognizing that § 1631 authorizes a

transfer), because his petition “in addition to being second or successive, [is]

indisputably time-barred[,]” Guenther, 173 F.3d at 1331, this Court having so

previously determined, Perry v. Dees, 00-0074-CB-C, Docs. 10, 12 & 13; see

also id. at Docs. 25 & 26 (Eleventh Circuit twice denies Perry’s requests of

certificate of appealability).

CONCLUSION

The 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).

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 23rd day of February, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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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 ten 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 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 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.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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