Fagan v. Richie (INMATE 3)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION RONNIE FAGAN, ) ) Petitioner, ) ) v. ) Case No.: 5:19-cv-00939-KOB- ) SGC WARDEN PATRICE RICHE, ) ) Respondent. ) MEMORANDUM OPINION Ronnie Fagan, an Alabama state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On July 30, 2019, the magistrate judge entered a report recommending this action be dismissed without prejudice for lack of jurisdiction because it is an unauthorized, successive petition under 28 U.S.C. § 2244(b)(3)(A). (Doc. 11). Fagan filed timely objections to the magistrate judge’s report and recommendation. (Doc. 14).

In his objections, Fagan restates his claims that: (1) he was denied counsel during his initial criminal trial; and (2) his subsequent conviction after a second trial constituted double jeopardy and should be set aside. (Id.). He further claims, without any authority, that “a denial of counsel . . . cannot be time barred.” But, Fagan does not address the magistrate judge’s findings that his petition is successive under 28 U.S.C. § 2244(b)(3)(A) and that he failed to obtain leave from the Eleventh Circuit before filing a second or successive petition in this court. See Magwood v. Patterson, 561 U.S. 320, 330-31 (2010) (A petitioner “must obtain leave from the court of appeals before filing it with the district court.”) (citing 28 U.S.C. § 2244(b)(3)(A)). So, the court OVERRULES Fagan’s objections.

Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections to it, the court ADOPTS the magistrate judge’s findings and ACCEPTS the recommendation.

Fagan’s petition for a writ of habeas corpus is due to be dismissed without prejudice for lack of jurisdiction because he has not received authorization from the Eleventh Circuit to file a second or successive habeas petition. See 28 U.S.C. § 2244(b)(3)(A).

Additionally, a certificate of appealability is due to be denied.

The court will enter a separate Final Order.

DONE and ORDERED this 2nd day of October, 2019.

____________________________________ KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE