“We hold that dismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction ‘second or successive’ petitions under § 2244(b).”
How later courts described this case
- “We hold that dismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction ‘second or successive’ petitions under § 2244(b).”
- holding that a prior untimely petition counts for § 2244(b) purposes because “a statute of limitations bar is not a curable technical or procedural deficiency but rather operates as an irremediable defect (ii
Written by the judges who cited it.
The opinion
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARCUS ANTONIO JONES, # 203884, )
)
Petitioner, )
) Civil Action No.
v. ) 1:20cv219-WHA
) (WO)
CHARLES TIPTON, et al., )
)
Respondents. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
Petitioner Marcus Antonio Jones, a state inmate at Red Eagle Honor Farm in
Montgomery, Alabama, filed this pro se action as a petition for writ of habeas corpus under
28 U.S.C. § 2241. Doc. # 1. In his petition, Jones challenges his 1999 murder conviction
and resulting 99-year sentence imposed by the Circuit Court of Coffee County. He asserts
various claims of trial error and ineffective assistance of counsel. Id. at 3–8. As explained
below, this court finds that Jones’s self-described § 2241 petition constitutes a successive
§ 2254 petition for writ of habeas corpus that has been filed without the required appellate
court permission.
II. DISCUSSION
Jones challenges his state conviction, and he is in custody under the judgment of an
Alabama court. Therefore, 28 U.S.C. § 2254 applies to his petition despite his designating
it as one filed under 28 U.S.C. § 2241. Medberry v. Crosby, 351 F.3d 1049, 1054 (11th
Cir. 2003); Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir. 2004). “A state prisoner cannot
evade the procedural requirements of § 2254 by filing something purporting to be a § 2241
petition.” Thomas, 371 F.3d at 787. Accordingly, this court must apply the procedural
restrictions applicable to § 2254 petitions to Jones’s petition.1
Under 28 U.S.C. § 2244(b)(3)(A), before a second or successive § 2254 petition is
filed in the district court, the applicant must “move in the appropriate court of appeals for
an order authorizing the district court to consider the application.” 28 U.S.C. §
2244(b)(3)(A). “A motion in the court of appeals for an order authorizing the district court
to consider a second or successive application shall be determined by a three-judge panel
of the court of appeals” and may be granted “only if [the assigned panel of judges]
determines that the application makes a prima facie showing that the application satisfies
the requirements of [28 U.S.C. § 2244(b)(1) or (b)(2)].”2 28 U.S.C. § 2244(b)(3)(B), (C).
1 On April 2, 2020, this court entered an order finding that Jones’s petition should be construed as
one filed under 28 U.S.C. § 2254 and would henceforth proceed as such a petition. Doc. # 2.
2 Section 2244(b)(1) provides:
A claim presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be dismissed.
28 U.S.C. ' 2244(b)(1).
Section 2244(b)(2) provides:
A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed unlessB
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
This court’s records indicate that in February 2005, Jones filed a habeas petition
under 28 U.S.C. § 2254 challenging the same 1999 Coffee County murder conviction and
sentence he challenges by his instant petition. See Jones v. Mitchem, Civil Action No.
1:05cv200-WKW. In that prior habeas action, this court denied Jones’s petition as time-
barred under AEDPA’s limitation period and dismissed the action with prejudice. See id.,
Docs. # 25, 27, 28. The final judgment was entered by the district court on October 26,
2006.
As a matter of law, dismissal of a § 2254 petition on statute-of-limitations grounds
constitutes an adjudication on the merits for purposes of § 2244(b)(3)’s second-or-
successive-petition requirements. See, e.g., Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir.
2005) (“We hold that dismissal of a § 2254 petition for failure to comply with the one-year
statute of limitations constitutes an adjudication on the merits that renders future petitions
under § 2254 challenging the same conviction ‘second or successive’ petitions under §
2244(b).”); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (holding that a prior
untimely petition counts for § 2244(b) purposes because “a statute of limitations bar is not
a curable technical or procedural deficiency but rather operates as an irremediable defect
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. ' 2244(b)(2).
barring consideration of the petitioner's substantive claims”) (followed in Cogman v. Crow,
2018 WL 5624299, at *2 (M.D. Ala. 2018)).
Jones furnishes no certification from the Eleventh Circuit Court of Appeals
authorizing this court to proceed on his successive application for habeas corpus relief.
Because this undertaking is a successive § 2254 habeas corpus petition and because Jones
has not obtained permission from the appellate court to file a successive § 2254 petition,
this court lacks jurisdiction to consider Jones’s claims. See Gilreath v. State Board of
Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). Consequently, Jones’s petition
is due to be dismissed for lack of jurisdiction. Id. at 934.
III. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Jones’s
28 U.S.C. § 2254 petition be DISMISSED for lack of jurisdiction, as Jones has failed to
obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing a federal
district court to consider his successive habeas application.
It is further
ORDERED that the parties shall file any objections to this Recommendation on or
before April 20, 2020. A party must specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made; frivolous, conclusive, or
general objections will not be considered. Failure to file written objections to the
Magistrate Judge’s findings and recommendations under 28 U.S.C. § 636(b)(1) shall bar a
party from a de novo determination by the District Court of legal and factual issues covered
in the Recommendation and waives the right of the party to challenge on appeal the District
Court’s order based on unobjected-to factual and legal conclusions accepted or adopted by
the District Court except upon grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1. See Stein v. Lanning
Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661
F.2d 1206 (11th Cir. 1981) (en banc).
DONE this 6th day of April, 2020.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE