Davis v. Estes

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

WILLIAM EARL DAVIS, ) )

Petitioner, ) ) v. ) Case No. 5:18-cv-1617-RDP-SGC )

WARDEN DEBORAH TONEY, et al., ) )

Respondents. )

MEMORANDUM OPINION

The Magistrate Judge entered a Report and Recommendation on May 25, 2021, recommending the court dismiss Petitioner William Earl Davis’ petition for a writ of habeas corpus as successive pursuant to 28 U.S.C. § 2244(b)(3)(A). (Doc. 10). Although the Magistrate Judge advised Davis of his right to file objections to the Report and Recommendation within 14 days, the court has not received objections.

Having carefully reviewed and considered de novo all the materials in the court file, including the Report and Recommendation, the court ADOPTS the Magistrate Judge’s Report and ACCEPTS her Recommendation. Davis’ 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 successive habeas petition. See 28 U.S.C. § 2244(b)(3)(A). Generally, a petitioner seeking to appeal from § 2254 proceedings must first obtain a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c). However, no COA is necessary to appeal a district court’s dismissal of a successive habeas petition for lack of subject matter jurisdiction because such order is not a “final order in a habeas corpus proceeding.” Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 n.3 (11th Cir. 2020) (quoting 28 U.S.C. § 2253(c)(1)(A)); see Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004)). Rather, the dismissal is a “final decision” pursuant to 28 U.S.C. § 1291. See Osbourne, 968 F.3d at 1264 n.3.

The court will enter a separate order.

DONE and ORDERED this June 15, 2021.

R! DAVID Z 24 2

UNITED STATES DISTRICT JUDGE