United States District Court, E.D. Arkansas, Jonesboro Division
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The
following recommended disposition has been sent to United
States District Court Judge D.P. Marshall, Jr. 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:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A 149 Little Rock, AR
72201-3325
DISPOSITION
Petitioner
is a prisoner currently confined in the Arkansas Department
of Correction. On October 22, 2018, he initiated this 28
U.S.C. § 2254 habeas action (DE # 2) along with a Motion
for Leave to Proceed In Forma Pauperis (DE # 1). For the
reasons set forth below, it is recommended that
Petitioner's petition be denied with prejudice.
Petitioner
previously challenged his convictions pursuant to 28 U.S.C.
§ 2254. See Bland[2] v. Hobbs,
5:11-cv-00286-JLH. The magistrate judge recommended that the
petition be dismissed because it was time barred and
procedurally defaulted. Id. at DE # 9. The Court
adopted the findings and recommendations of the magistrate
judge that the petition be dismissed. The action was
dismissed by judgment entered on July 13, 2012. Petitioner
subsequently filed the current habeas petition under a
different name.
A claim
presented in a second or successive habeas petition under
§ 2254 must be dismissed unless the Petitioner can make
a prima facie showing that he meets all of the requirements
of 28 U.S.C. § 2244(b)(2). Importantly, this
determination must be made by the Eighth Circuit Court of
Appeals, not the United States District Court. 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.”). Thus, in
order for Petitioner to file and pursue this successive
habeas action, he must obtain authorization from the Eighth
Circuit, pursuant to 28 U.S.C. § 2244(b)(3)(A).
The
instant petition is a successive petition. Petitioner does
not assert that he has sought or received permission from the
United States Court of Appeals for the Eighth Circuit to file
this petition. He may not file a successive petition in this
Court without permission of the Eighth Circuit. ...