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Lever v. Kelley

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

June 13, 2016

JAMES C. LEVER ADC# 99939, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, et al., Respondent.

          RECOMMENDED DISPOSITION

          BETH DEERE, Magistrate Judge.

         I. Procedure for Filing Objections

         The following Recommended Disposition ("Recommendation") has been sent to Judge Billy Roy Wilson. Mr. Lever may file written objections with the Clerk of Court within fourteen (14) days of filing this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         By not objecting, any right to appeal questions of fact may be waived. And, if no objections are filed, Judge Wilson can adopt this Recommendation without independently reviewing the record.

         II. Jurisdiction

         Petitioner James C. Lever, an inmate in the Arkansas Department of Correction ("ADC"), filed the pending petition for writ of habeas corpus under 28 U.S.C. § 2254 and paid the filing fee. (Docket entries #1, #4) Mr. Lever is currently serving a life sentence without parole after being convicted of capital murder in the Circuit Court of Craighead County, Arkansas, on August 26, 1997. Lever v. State, 333 Ark. 377, 381, 971 S.W.2d 762, 764 (1998).

         In January, 2002, Mr. Lever filed a federal habeas petition under 28 U.S.C. § 2254, challenging his 1997 conviction. Lever v. Norris , 3:02cv00035-BRW (petition filed February January 29, 2002). In the petition, Mr. Lever complained that the prosecution wrongfully withheld evidence of the victim's reputation, in violation of the " Brady rule." He also complained that his trial counsel was ineffective for failing to investigate and present evidence of the victim's reputation and for advising him not to testify that he shot the victim out of fear of being harmed. Id. at docket entries #16, p. 2 and #17. The Court denied his petition, because Mr. Lever had procedurally defaulted his claims in state court and had not established cause, prejudice, or actual innocence in order to overcome his default. Id. at docket entries # 16 and #17.

         Mr. Lever requested a certificate of appealability, but the Court of Appeals for the Eighth Circuit reviewed the district court file, denied the application, and dismissed the appeal. Lever v. Norris , No. 03-1101, (8th Cir. Jan. 29, 2003). The United States Supreme Court denied Mr. Lever's petition for a writ of certiorari. Lever v. Norris, 539 U.S. 947, 123 S.Ct. 2615 (2003).

         Mr. Lever has now filed this second petition challenging the same judgment and commitment order. In this petition, Mr. Lever claims that his lawyer and the trial court were ineffective for failing to move for and order a mental evaluation; he also complains of errors during jury selection. (Docket entries #1 and #2)

         The Court lacks jurisdiction to hear Mr. Lever's petition. As noted, Mr. Lever has already challenged his conviction through a federal habeas petition. Before filing a second habeas corpus petition in federal court, a petitioner must seek and receive an order from the appropriate court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Authorization is required even where the petitioner claims actual innocence. 28 U.S.C. § 2244(b)(2)(B)(i)-(ii). Without an order from the court of appeals authorizing the filing of a second petition, the district court lacks jurisdiction to hear the petition. Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007).[1]

         Summary dismissal of a habeas corpus petition - prior to any answer or other pleading being filed by the respondent - is appropriate where the petition itself and court records show that the petition is a second or successive petition filed without authorization from the court of appeals. See Rule 4, Rules Governing Habeas Corpus Cases; Blackmon v. Armontrout, 61 Fed.Appx. 985, 985 (8th Cir. 2003). The pending petition is clearly successive because Mr. Lever has filed a prior petition challenging the same state court judgment.

         III. Conclusion

         The Court recommends that Judge Wilson DENY and DISMISS James C. Lever's petition for writ of habeas corpus (#1), without prejudice, for lack of jurisdiction. The Court further ...


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