United States District Court, E.D. Arkansas, Pine Bluff Division
JAMES C. LEVER ADC# 99939, Petitioner,
WENDY KELLEY, Director, Arkansas Department of Correction, et al., Respondent.
DEERE, Magistrate Judge.
Procedure for Filing Objections
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
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
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. Â§ 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).
January, 2002, Mr. Lever filed a federal habeas petition
under 28 U.S.C. Â§ 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.
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).
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)
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. Â§ 2244(b)(3)(A). Authorization is
required even where the petitioner claims actual innocence.
28 U.S.C. Â§ 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
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
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