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Winnett v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

July 9, 2015

DONALD FELIX WINNETT ADC #139544, Petitioner,
v.
WENDY KELLEY, Director Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

J. THOMAS RAY, Magistrate Judge.

INSTRUCTIONS

The following Proposed Findings and Recommended Disposition ("Recommendation") have been sent to United States District Judge Susan Webber Wright. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

I. Introduction

On June 4, 2015, Petitioner, Donald Felix Winnett ("Winnett"), an Arkansas Department of Correction inmate, filed this § 2254 habeas action, which challenges his 2007 rape conviction in Saline County Circuit Court. Docs. 2 & 5.

However, two years earlier, on April 22, 2013, Winnett filed a similar § 2254 habeas action in the Eastern District of Arkansas, which challenged the same conviction. Winnett v. Hobbs, E.D. Ark. No. 5:13cv00126-DPM. On October 2, 2013, United States District Judge D.P. Marshall Jr. dismissed that case, with prejudice. Id . at docs. 35 & 36. Winnett did not appeal and Judge Marshall's decision became final.

For the reasons discussed below, the Court recommends that this action be dismissed sua sponte because Winnett has not obtained permission from the Eighth Circuit Court of Appeals to file a successive habeas action. See Rule 4, Rules Governing § 2254 Cases in United States District Courts.

II. Discussion

This is a successive § 2254 habeas action in which Winnett is once again seeking to collaterally attack his 2007 rape conviction.[1] Only the Eighth Circuit Court of Appeals has the authority to grant permission to file 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 Winnett obtains the required authorization from the Eighth Circuit, this Court lacks jurisdiction to proceed. Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007).

III. Conclusion

IT IS THEREFORE RECOMMENDED THAT:

1. This 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus, Docs. 2 & 5, be DISMISSED, WITHOUT PREJUDICE, so that Winnett 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

2. 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.


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