United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDATIONS
following recommended disposition 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 Clerk within fourteen
(14) days of this Recommendation. By not objecting, you may
waive the right to appeal questions of fact.
Wallace (“Wallace”), an inmate in the custody of
the Arkansas Department of Correction (ADC), filed this
application for writ of habeas corpus pursuant to 28 U.S.C.
§2254. Following a 2002 jury trial in Pulaski County,
Wallace was convicted of murder in the first degree and
sentenced as an habitual offender to forty years'
imprisonment. Wallace's direct appeal was unsuccessful.
Wallace v. State, 2004 WL 1059787 (Ark. App., May
12, 2004). Wallace did not seek Rule 37 postconviction relief
in state court but did file a petition for writ of error
coram nobis, which was denied by the Arkansas Court
of Appeals in September 2005. In 2005 Wallace sought federal
habeas corpus relief, filing a petition with this Court in
which he alleged two grounds for relief. Wallace v.
Norris, Case No. 5:05CV00257. This case was dismissed
with prejudice on October 15, 2008. Wallace then filed a
notice of appeal and a motion for certificate of
appealability with this Court, which was denied on November
21, 2008. Wallace also sought a certificate of appealability
from the Eighth Circuit Court of Appeals, which denied the
request on August 17, 2009.
2014, Wallace filed a successive petition for federal habeas
corpus relief with this Court. Wallace v. Hobbs,
Case No. 5:14CV00109. In his petition, Wallace claimed to
have only recently discovered that four witnesses gave false
and/or misleading testimony at his trial, and that the
prosecution failed to disclose exculpatory evidence. The
Court found that Wallace had not obtained permission from the
Eighth Circuit Court of Appeals to file the second or
successive petition, and that his claims of newly discovered
evidence did not excuse his failure to obtain the
authorization from the Appeals Court to file the petition. As
a result, the 2014 habeas corpus petition was dismissed
without prejudice to allow Wallace to seek pre-authorization
from the Eighth Circuit Court of Appeals to file a second
petition. On March 11, 2015, the Eighth Circuit Court of
Appeals denied Wallace's application for a certificate of
current petition and the amended petition, filed respectively
on May 24 and June 12, 2019, advance four claims targeted at
the 2002 Pulaski County conviction for murder in the first
degree. There is no showing that the petitioner has sought or
received permission from the Eighth Circuit Court of Appeals
to file the instant petition. The respondent moves to dismiss
the current petition for failing to seek or receive
permission from the Eighth Circuit Court of Appeals to file a
successive petition. Docket entry no. 6.
U.S.C. § 2244(b)(3)(A) provides: “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.” The
statutory language is clear that permission must be received
before the filing of a successive petition with the district
court. As a result, this Court recommends that the petition
and amended petition be dismissed without prejudice pending
an order from the Eighth Circuit Court of Appeals containing
authorization for filing.
to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing
Section 2554 Cases in the United States District Court, the
Court must determine whether to issue a certificate of
appealability in the final order. In § 2254 cases, a
certificate of appealability may issue only if the applicant
has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(1)-(2). The
Court finds no issue on which petitioner has made a
substantial showing of a denial of a constitutional right.
Thus, the undersigned recommends the certificate of
appealability be denied.
Wallace, citing Bates v. Norris, 2006
WL 3741925 (E.D. Ark.), contends that the equal protection
clause requires this Court to transfer the case to the Eighth
Circuit Court of Appeals rather than dismiss for want of
jurisdiction. Docket entry nos. 8 & 10. The Court does
not agree. Although the Bates case found transfer rather than
dismissal was ...