Opinion

Culbreth v. Crow (INMATE 3)

Court
District Court, M.D. Alabama
Filed
Nov 12, 2020
Cited by
0 cases
Authority
More cited than 31.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES ARTHUR CULBRETH, )

AIS #214203, )

)

Petitioner, )

)

v. ) CASE NO. 2:20-CV-886-RAH-KFP

)

JOHN CROW, et al., )

)

Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Petitioner James Arthur Culbreth, a state inmate at Easterling Correctional Facility

in Clio, Alabama, filed this pro se action as a petition for writ of habeas corpus under 28

U.S.C. § 2241. Doc. 1. Culbreth challenges his convictions for first-degree sodomy entered

against him in 2000 by the Circuit Court of Montgomery County. Culbreth is serving a life

sentence for these convictions. As explained below, this Court finds Culbreth’s self-

described § 2241 petition constitutes a successive § 2254 petition for writ of habeas corpus

filed without the required appellate court permission.

I. BACKGROUND

During the April 1999 session of the Montgomery County Grand Jury, Culbreth was

indicted in two separate three-count indictments. Counts I and II of each indictment

charged Culbreth with two separate counts of first-degree sodomy, and Count III of each

indictment charged Culbreath with one count of enticing a child. After Culbreth entered

pleas of not guilty to both indictments, the indictments were consolidated for trial. On

September 26, 2000, a jury convicted Culbreth of the charges in the indictments. On

October 5, 2000, the trial court granted the State’s request to nolle prosse the convictions

returned against Culbreth on the offenses charged in Count II of each indictment. The trial

court sentenced Culbreth on November 14, 2000, to life in prison on two counts of first-

degree sodomy (as charged in Count I of each indictment) and five years’ imprisonment

on the two counts of enticing a child (as charged in Count III of each indictment). The trial

court directed all sentences to run concurrently.

In his present petition, Culbreth argues that the trial court’s grant of the State’s

request to nolle prosse the convictions returned against him on the offenses charged in

Count II of each indictment operated as an “acquittal” of the offenses charged in Count I

of each indictment, i.e., the two counts of first-degree sodomy for which he is serving a life

sentence. See Docs. 1, 2. He maintains he is therefore entitled to be released from prison.

II. DISCUSSION

Culbreth challenges his state convictions and sentence, 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 Culbreth’s petition.1

1 On November 9, 2020, this Court entered an Order finding Culbreth’s petition should be construed as one

filed under 28 U.S.C. § 2254 and that this case would proceed accordingly. Doc. 3.

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).

This Court’s records indicate that in February 2003, Culbreth filed a habeas petition

under 28 U.S.C. § 2254 challenging the same convictions and sentence he challenges by

his instant petition. See Culbreth v. Price, Civil Action No. 2:03cv218-MEF. In that prior

habeas action, this Court denied Culbreth’s petition and dismissed the action with

prejudice. See id., Docs. 26, 31, 32. The final judgment was entered by the district court on

April 27, 2005. Culbreth’s instant petition, therefore, is a successive application for habeas

corpus relief under 28 U.S.C. § 2254.

2 Section 2244(b)(1) provides that a claim presented in a second or successive habeas corpus

application under § 2254 that was presented in a prior application shall be dismissed. Section

2244(b)(2) provides that a claim presented in a second or successive habeas corpus application

under § 2254 that was not presented in a prior application shall be dismissed unless (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 (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.

Culbreth 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 petition and because Culbreth has not

obtained permission from the appellate court to file a successive § 2254 petition, this Court

lacks jurisdiction to consider Culbreth’s claims. See Gilreath v. State Board of Pardons

and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). Consequently, Culbreth’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

Culbreth’s 28 U.S.C. § 2254 petition be DISMISSED for lack of jurisdiction, as Culbreth

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 on or before November 30, 2020, the parties may file objections

to the Recommendation. The parties 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 by the Court. The parties are

advised that this Recommendation is not a final order and, therefore, is not appealable.

Failure to file written objections to the Magistrate Judge’s findings and

recommendations in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo

determination by the District Court of legal and factual issues covered in the

Recommendation and waive 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 on 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 Sec., 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 on this 12th day of November, 2020.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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