Smith v. Toney

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION DANNY L. SMITH, ) ) Petitioner, ) ) v. ) Case No. 4:21-cv-00899-RDP-HNJ ) TONEY, Warden, et al., ) ) Respondents. ) MEMORANDUM OPINION Danny L. Smith, an Alabama state prisoner, filed this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 . (Doc. 1). On August 11, 2021, the Magistrate Judge entered a Report and Recommendation that this action be dismissed without prejudice for lack of jurisdiction, because Smith’s petition amounts to a successive § 2254 application, for which he lacks authorization from the Eleventh Circuit, as required by 28 U.S.C. § 2244 (b)(3)(A). (Doc. 6). On September 1, 2021, Smith filed timely objections. (Doc. 7). Smith first asserts that the issue he raised in his prior petition1---whether the repeal and replacement of an Alabama statute voids all convictions under the prior statute---has never been addressed on its merits. (Doc. 7 at 4). According to Smith, § 2244 does not bar his instant petition because the court failed to address the factual basis for this claim. (Doc. 7 at 7-9). Smith relies on Davis v. United States, 417 U.S. 333 (1974) and Sanders v. U.S., 373 U.S. 1 (1963). (Doc. 7 at 4, 7). Both these cases predate the 1996 passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). AEDPA replaced the rule in Sanders with the current requirement that prior to 1 Smith v. State of Alabama, 4:17-cv-01223-RDP-JEO. This court may take judicial notice of its own records. See United States v. Glover, 179 F.3d 1300 , 1302 n. 5 (11th Cir. 1999); McBride v. Sharpe, 25 F.3d 962, 969 (11th Cir. 1994). filing second or successive habeas petitions with the district court a petitioner must seek approval in the relevant court of appeals. “The Act requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court.” Felker v. Turpin, 518 U.S. 651, 664 (1996); see also Banister v. Davis, --U.S.--, 140 S.Ct. 1698, 1704 (2020) (“Under AEDPA …. [t]o file a second or successive application in a district court, a prisoner must first obtain leave from the court of appeals based on a ‘prima facie showing’ that his petition satisfies the statute’s gatekeeping requirements.”); Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004), aff’d on other grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524 (2005) (“We have gone from the days of the more permissive ends of justice and abuse of the writ standards, see, e.g., Sanders v. United States, 373 U.S. 1, 12 (1963) … to the present post-AEDPA times, with a total ban on claims that were presented in a prior petition, § 2244(b)(1), and a neartotal ban on those that were not, see § 2244(b)(2).”). Relying on Davis v. United States, 417 U.S. 333 (1974), Smith next argues his sentence demonstrates a fundamental miscarriage of justice and therefore he need not present a constitutional claim to seek relief. (Doc. 7 at 5-6). He further contends that his challenge to the “predicate criminal code,” particularly the “intervening substantive change in the criminal code,” suffices to show “exceptional circumstances,” as articulated in Davis, supra. (Doc. 7 at 6). Davis held, pre-AEDPA, that a petitioner could bring a petition pursuant to § 2255 based upon an intervening change in the law of the circuit. Id., at 345-47. But upon adoption of AEDPA, only two avenues for a successive petition exist, both requiring an argument not previously raised which relies on either (1) a new rule of constitutional law, or (2) a factual predicate previously undiscoverable. 28 U.S.C. § 2244 (b)(2)(A)-(B). See e.g., In re Davis, 565 F.3d 810, 816-17 (11th Cir. 2009). Alabama’s repeal of a state statute and adoption of a new statute does not provide a new rule of constitutional law. Nor has Smith pointed to any previously undiscoverable factual predicate. Finally, as Smith recognizes, he already raised this very claim in his prior petition. (Doc. 7 at 4). “AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications. If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases.” Tyler v. Cain, 533 U.S. 656, 661 (2001). But, even if Smith could establish he fell within one of the exceptions set forth in § 2244(b)(2), a petition filed under those provisions still must meet the gatekeeping requirement in § 2244(b)(3). See Felkin, 518 U.S. at 664 . Smith’s suggestion that the court follow United States v. Ellis, 2021 WL 54215 (S.D. Ala. Jan 6. 2021), and Rule 9 of the Rules Governing Section 2254 Cases (Doc. 7 at 9), lends no assistance to him. In Ellis, the Southern District of Alabama held only that, because on direct appeal the Eleventh Circuit squarely addressed the claim Ellis attempted to raise in his § 2255 motion, Ellis could not demonstrate a basis for relief without a “change in substantive law.” Id., 2021 WL 54215 , *3. And, in its current iteration, Rule 9 of the Rules Governing Section 2254 Cases states that “[b]efore presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244 (b)(3) and (4).” None of Smith’s arguments impact whether this petition is successive for purposes of § 2244(b)(3)(A). Regardless of the merits of his petition, this court lacks jurisdiction to consider it unless the Eleventh Circuit authorizes the filing of a successive petition. See e.g., Burton v. Stewart, 549 U.S. 147, 152-53 (2007); In re Bradford, 830 F.3d 1273, 1277 (11th Cir. 2016) (stating “when a petitioner fails to seek permission from the court of appeals to file a second or successive petition, the district court lacks jurisdiction to consider it.”). Having carefully reviewed and considered de novo all the materials in the court file, including the Magistrate Judge’s Report and Recommendation, and Smith’s objections, the court is of the opinion that Smith’s objections are due to bb OVERRULED. The Magistrate Judge’s findings are ADOPTED and his Recommendation ACCEPTED. Smith’s petition for a writ of habeas corpus is due to be DISMISSED WITHOUT PREJUDICE, for lack of jurisdiction. A separate Order will be entered. The court does not rule on a certificate of appealability (“COA”) because a COA is unnecessary when dismissing a case as successive. See Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261 , 1264 n.3 (11th Cir. 2020) (“Although generally appeals from § 2254 proceedings require a certificate of appealability (“COA”), no COA is necessary to appeal the dismissal for lack of subject matter jurisdiction of a successive habeas petition because such orders are not ‘a final order in a habeas corpus proceeding.’” (citing Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004))). DONE and ORDERED this September 17, 2021. UNITED STATES DISTRICT JUDGE