United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James M. Moody Jr. 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 this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Wesley Jefferson (“Jefferson”), an Arkansas
Department of Correction inmate, has filed a 28 U.S.C. §
2254 Petition for a Writ of Habeas Corpus. (Doc.
2.) He attacks his 2006 convictions for capital murder,
aggravated robbery, theft of property, and fleeing.
2010, Jefferson challenged the same convictions in a §
2254 habeas action. Jefferson v. Norris, E.D. Ark.
No. 5:10CV00167-JMM-JTR. On April 19, 2011, United States
District Judge James M. Moody dismissed that case, with
prejudice, because Jefferson's claims were procedurally
barred and without merit.Id. at docs. 23-24. Jefferson
was later denied a certificate of appealability by the Eighth
Circuit Court of Appeals. Id. at doc. 30.
2015, Jefferson filed another § 2254 habeas action
attacking the same convictions. Jefferson v. Kelley,
E.D. Ark. No. 5:15cv00186-JM-JTR. On July 8, 2015, United
States District Judge James M. Moody Jr. dismissed the case,
without prejudice, to allow Jefferson to seek permission from
the Eighth Circuit to file a second or successive § 2254
petition. Id. at docs. 6-7.
then filed, with the Eighth Circuit, two applications for
permission to file a successive § 2254 habeas petition
challenging his 2006 convictions. Both applications were
denied. Jefferson v. Kelley, No. 15-2528 (8th Cir.
Sept. 30, 2015); Jefferson v. Kelley, No. 16-3374
(8th Cir. Jan. 4, 2017).
October 18, 2017, Jefferson initiated the current § 2254
habeas action. For the reasons discussed below, the Court
recommends that the Petition be dismissed, without prejudice,
because Jefferson 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 (a federal court should
summarily dismiss a habeas petition if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
yet another successive § 2254 habeas action challenging
Jefferson's 2006 convictions for capital murder,
aggravated robbery, theft of property, and fleeing. Only the
Eighth Circuit Court of Appeals has the authority to grant
Jefferson permission to file 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 Jefferson 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).
THEREFORE RECOMMENDED THAT:
Jefferson's Motion for Leave to Proceed In Forma
Pauperis (Doc. 1) be GRANTED;
Jefferson's 28 U.S.C. § 2254 Petition for a Writ of
Habeas Corpus (Doc. 2) be DISMISSED, WITHOUT
PREJUDICE, so that Jefferson 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
Certificate of Appealability be DENIED, see 28
U.S.C. § ...