United States District Court, E.D. Arkansas, Pine Bluff Division
Procedure for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge Susan Webber Wright. Mr. White may file
written objections with the Clerk of Court. To be considered,
objections must be filed within 14 days. Objections should be
specific and should include the factual or legal basis for
White does not file objections, he risks waiving the right to
appeal questions of fact. And, if no objections are filed,
Judge Wright can adopt this Recommendation without
independently reviewing the record.
Ricky White, an inmate in the Arkansas Department of
Correction (“ADC”), brings this 28 U.S.C. §
2254 petition for writ of habeas corpus. (Docket entry #2)
Mr. White was convicted of aggravated robbery in Miller
County Circuit Court. He was sentenced, as a habitual
offender, to serve 75 years in the ADC. The Arkansas Supreme
Court affirmed his conviction and sentence. White v.
State, 310 Ark. 200 (1992).
1993, Mr. White commenced his first federal court challenge
to his conviction by filing a petition for writ of habeas
corpus in the Western District of Arkansas under 28 U.S.C.
§ 2254. White v. Endell, No. 4:93-CV-4021 (May
28, 1993). The court denied the petition. Id. at
docket entry #15. Mr. White filed a notice of appeal with the
Eighth Circuit, but later withdrew the notice. Id.
at docket entries #17, #19.
1996, Mr. White commenced his second federal court challenge
to the same conviction, again by filing a petition for writ
of habeas corpus in the Western District of Arkansas.
White v. Norris, No. 4:96-CV-4102 at docket entry #1
(July 2, 1996). The court denied the petition as an
unauthorized second petition. Id. at docket entry #9
(August 20, 1996). Mr. White petitioned the Eighth Circuit
for permission to file a successive petition, but the Court
denied his request. Id. at docket entry #10 (Nov. 6,
2000, Mr. White commenced a third petition for writ of habeas
corpus in the Eastern District of Arkansas challenging the
same conviction. White v. Hobbs, No. 5:00-CV-6 SWW
(Jan. 7, 2000). Judge Wright adopted a recommendation to
dismiss the petition as an unauthorized second or successive
petition. Id. at docket entry #8.
White has now commenced his fourth federal court challenge to
his aggravated robbery conviction by filing the instant
petition for writ of habeas corpus. (Docket entry #2) Mr.
White attaches to his petition a recent Arkansas Supreme
Court order denying his appeal of the trial court's
denial of his petition to correct an illegal sentence. (#3 at
56) The Arkansas Supreme Court denied the appeal because Mr.
White failed to state a basis for relief under Arkansas law
or Arkansas Rule of Criminal Procedure 37.1. (#3 at 56)
White v. State, 2018 Ark. 81. It appears that Mr.
White now attempts to appeal the denial of his state
petition. (#2 at 3) He claims that his sentence is illegal
because two of his prior convictions should not have been
admitted into evidence for the jury to consider during
sentencing. (#2 at 2-9, #3 at 2)
Court lacks jurisdiction to hear Mr. White's petition. As
set forth above, Mr. White has already challenged his
conviction through earlier federal habeas petitions. Before
he is eligible to file another federal petition challenging
this conviction, he must seek and receive an order from the
Court of Appeals for the Eighth Circuit authorizing this
Court to consider the petition. 28 U.S.C. §
2244(b)(3)(A). Without an order from the court of appeals
authorizing a second petition, the district court cannot hear
the petition. Burton v. Stewart, 549 U.S. 147,
152-53, 157 (2007).
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. The pending petition is
Court recommends that Judge Wright: DENY and DISMISS Ricky
White's petition for writ of habeas corpus (#2), without
prejudice; deny his motion for leave to proceed in forma