Crittendon v. Davenport Crittendon v. Davenport (M.D. Ala., 2015)

Copy Citation

RICKEY CRITTENDON, # 135565, Petitioner,
v.
CARTER DAVENPORT, et at Respondents.

Civil Action No. 1: 15cv897-MHT (WO)

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

December 11, 2015

RICKEY CRITTENDON, # 135565, Petitioner, v. CARTER DAVENPORT, et at Respondents.

Civil Action No. 1: 15cv897-MHT (WO)

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

December 11, 2015

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

        This case is before the court on a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama prisoner Rickey Crittendon ("Crittendon"). See Doc. No. 1. Crittendon challenges convictions for first-degree rape, first-degree robbery, and first-degree burglary entered against him in June 1983 by the Circuit Court of Dale County. He raises claims challenging the sufficiency of the indictment, asserting a double-jeopardy violation, alleging that the prosecution withheld exculpatory evidence, and arguing that he received ineffective assistance of counsel. For the reasons that follow, Crittendon's petition should be denied under 28 U.S.C. § 2244(b)(3) and dismissed as a successive § 2254 petition filed without the required appellate court authorization.

II. DISCUSSION

        The court's records reflect that in May 2002, Crittendon filed a previous habeas petition under 28 U.S.C. § 2254 challenging the first-degree rape, first-degree robbery, and

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first-degree burglary convictions entered against him in June 1983 by the Circuit Court of Dale County. See Crittendon v. Mosley et al Civil Action No. 1: 02cv552-MHT (M. D. Ala. 2004), Doc. No. 1. The court denied that petition with prejudice because it was not filed within the one-year limitation period in 28 U.S.C. § 2244(d) and dismissed the case with prejudice. Id Doc. Nos. 61, 63, and 64.

        Under 28 U.S.C. § 2244(b)(3)(A), "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). "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" and may be granted "only if the assigned panel of judges determines that the application makes a prima facie showing that the application satisfies the requirements of 28 U.S.C. § 2244(b)(1) or (b)(2). " 28 U.S.C.

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§ 2244(b)(3)(B) & (C).

        The dismissal of a § 2254 petition for untimeliness under 28 U.S.C. § 2244(d) qualifies as an adjudication on the merits for purposes of successive-petition rules and renders future challenges to the same conviction under § 2254 "second or successive" and subject to the requirements of 28 U.S.C. § 2244(b)(1)-(3). See Murray v. Greiner 394 F. 3d 78. 79 (2 Cir. 2005); see also e. g Altman v. Benik 337 F. 3d 764, 766 (7 Cir. 2003).

        Crittendon has not received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this court to consider his successive application for habeas relief. "Because this undertaking is a successive habeas corpus petition and because Crittendon had no permission from the Eleventh Circuit to file a successive habeas petition, . . . the district court lacks jurisdiction to grant the requested relief. " Gilreath v. State Board of Pardons and Paroles 273 F. 3d 932, 933 (11 Cir. 2001). Consequently, the

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instant petition for writ of habeas corpus should be denied and this case summarily dismissed. Id. at 934.

III. CONCLUSION

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

        1. The petition for writ of habeas corpus filed by Crittendon be DENIED.

        2. This cause of action be DISMISSED under 28 U.S.C. § 2244(b)(3), because Crittendon has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application.

        The parties may file any objections to this Recommendation on or before December 28, 2015. Any objections filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge's Recommendation to which the parties object. Frivolous, conclusive or general objections will not be considered by the District Court.

        Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall "waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders Inc 996 F.2d 1144 1149 (11 Cir. 1993); Henley v. Johnson 885 F.2d 790 794 (11 Cir. 1989). .

        DONE this 11 day December, 2015.

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        /s/ Terry F. Moorer        TERRY F. MOORER        UNITED STATES MAGISTRATE JUDGE

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Footnotes:

         Section 2244(b)(1) provides:

A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

28 U.S.C. § 2244(b)(1).

        Section 2244(b)(2) provides:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).

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Footnotes:

         Section 2244(b)(1) provides:

28 U.S.C. § 2244(b)(1).

        Section 2244(b)(2) provides:

28 U.S.C. § 2244(b)(2).

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