Wells v. Headley (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

NICHOLAS WELLS, # 207770, )

)

Petitioner, )

) Civil Action No.

v. ) 2:21cv411-WHA-SRW

) [WO]

JOSEPH H. HEADLEY, et al., )

)

Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Nicholas Wells filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in

this court on June 11, 2021, challenging his conviction for three counts of unlawful

distribution of a controlled substance in a 2004 jury trial in the Covington County Circuit

Court (Case No. CC-03-414). Doc. 1. The trial court sentenced Wells as an habitual

offender to concurrent terms of 35 years in prison for each conviction. In his § 2254

petition, Wells claims that he was denied his right to counsel when seeking to appeal his

convictions in March 2004. Doc. 1. For the reasons that follow, the court finds that Wells’

petition is a successive habeas petition subject to dismissal because it was filed without

preauthorization from the Eleventh Circuit Court of Appeals.

II. DISCUSSION

Wells has filed two previous habeas corpus petitions challenging his March 2004

controlled substance convictions in Covington County Circuit Court Case No. CC-03-414.

The instant § 2254 petition represents Wells’s third attempt in this court at challenging

those convictions. Wells’s first habeas petition, which he filed in February 2012, was

denied and dismissed with prejudice in July 2014.1 See Wells v White, Civil Action No.

2:12cv274-TMH (M.D. Ala. 2014). His second habeas petition, which he filed in

September 2016, was dismissed for lack of jurisdiction because it was a successive habeas

petition filed without the required appellate court preauthorization. See Wells v Peterson,

Civil Action No. 2:16cv780-WKW (M.D. Ala. 2016).

Under 28 U.S.C. § 2244(b)(3)(A), “[b]efore 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.” 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 This court found that Wells’s first habeas petition was time-barred under AEDPA’s statute of

limitations, 28 U.S.C. § 2244(d)(1). Wells v White, Civil Action No. 2:12cv274-TMH (M.D. Ala.

2014). A prior habeas petition dismissed as untimely under AEDPA’s statute of limitations

“counts” as a first petition for purposes of AEDPA’s successive petition provisions. See Altman v.

Benik, 337 F.3d 764, 766 (7th Cir. 2003); Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005).

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:

Wells has furnished no certification from the Eleventh Circuit Court of Appeals

authorizing this court to proceed on his successive petition challenging his March 2004

controlled substance convictions. “Because this undertaking [is a successive] habeas

corpus petition and because [Wells] had no permission from [the Eleventh Circuit] to file

a [successive] habeas petition, . . . the district court lack[s] jurisdiction to grant the

requested relief.” Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th

Cir. 2001). See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (providing

that, without an order from the court of appeals authorizing the district court to consider a

successive habeas petition, the district courts lack jurisdiction to consider the petition).

Consequently, Wells’s § 2254 petition should be dismissed as a successive petition

filed without the requisite preauthorization from the Eleventh Circuit Court of Appeals.

III. CONCLUSION

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

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.

28 U.S.C. § 2244(b)(2).

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the

§ 2254 petition be DISMISSED under 28 U.S.C. § 2244(b)(3)(A) for lack of jurisdiction

as a successive petition filed without the required preauthorization from the Eleventh

Circuit Court of Appeals.

Additionally, it is ORDERED that the parties shall file any objections to this

Recommendation by July 6, 2021. A party must specifically identify the factual findings

and legal conclusions in the Recommendation to which each 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 also Stein v.

Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982); Bonner v. City of Prichard, 661

F.2d 1206 (11th Cir. 1981) (en banc).

DONE, on this the 21st day of June, 2021.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge