United States District Court, E.D. Arkansas, Pine Bluff Division
October 6, 2014
PAUL LATHAM, ADC #75647, Petitioner,
RAY HOBBS, Director Arkansas Department of Correction, Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS
J. THOMAS RAY, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge Susan Webber Wright. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.
From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Petitioner, Paul Latham, an Arkansas Department of Correction inmate, has filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus ( doc. 2 ) attacking his 1993 rape conviction, and a Motion for Leave to Proceed In Forma Pauperis ( doc. 1 ).
Petitioner challenged the same conviction in an earlier § 2254 habeas action, which was dismissed by United States District Judge Susan Webber Wright. Latham v. Norris, E.D. Ark. No. 5:07CV00135 SWW, at docs. 24-25. Petitioner did not appeal.
On August 7, 2014, Petitioner initiated the current § 2254 habeas action. For the reasons set forth below, the Court recommends that the Petition be dismissed because Petitioner has not obtained permission from the Eighth Circuit Court of Appeals to file a successive habeas petition. See Rule 4, Rules Governing § 2254 Cases in United States District Courts.
This is a successive § 2254 habeas action challenging Petitioner's 1993 rape conviction. Only the Eighth Circuit Court of Appeals has the authority to grant permission to file a such a successive § 2254 habeas action. See 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."). Until Petitioner obtains the required authorization from the Eighth Circuit, this Court lacks jurisdiction to proceed with this habeas action. Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007).
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner's Motion to Proceed In Forma Pauperis, Doc. 1, be GRANTED;
2. This 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus, Doc. 2, be DISMISSED, WITHOUT PREJUDICE, so that Petitioner may seek authorization from the Eighth Circuit Court of Appeals, pursuant to 28 U.S.C. § 2244(b)(3)(A), to file a successive habeas petition; and
3. A Certificate of Appealability be DENIED, see 28 U.S.C. § 2253(c)(1)-(2); Rule 11(a), Rules Governing § 2254 Cases in United States District Courts; Slack v. McDaniel, 529 U.S. 473, 484 (2000).