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