United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Ingram has filed a Petition for Writ of Habeas Corpus, under
28 U.S.C. § 2254, alleging (among other things) that the
state prosecutor withheld exculpatory evidence. Doc. 1 at
16-19. He also seeks leave to file his § 2254 petition
in forma pauperis (IFP). Doc. 3. Finding him
indigent, the Court GRANTS his IFP motion and proceeds to
screen his petition. See Rules Governing § 2254
Cases, Rule 4.
was convicted of felony murder, among other counts, by a
Chatham County, Georgia jury in 2000. See doc. 1 at
1; see also Ingram v. State, 276 Ga. 223, 223 n. 1
(2003). He petitioned this Court for habeas relief in 2014.
Compare doc. 1 at 1 (noting state indictment number
CR-00-1087), with Ingram v. Williams, CV414-140,
doc. 1 at 3 (listing same indictment number). That petition
was dismissed as untimely (by more than a decade) and
unexhausted. See CV414-140, doc. 3 at 3, 5 (S.D. Ga.
Jul. 16, 2014), adopted doc. 6 (S.D. Ga. Aug. 27,
the Court has jurisdiction to consider his current petition,
Ingram must first “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); see also Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996) (§ 2244 “is an
allocation of subject-matter jurisdiction to the court of
appeals.”). In fact, this Court must dismiss
second or successive petitions without awaiting any response
from the government, absent prior approval by the Court of
Appeals. Tompkins v. Sec'y, Dep't of Corrs.,
557 F.3d 1257, 1259 (11th Cir. 2009); see also Smalls v
St. Lawrence, 2012 WL 1119766 at * 1 (S.D. Ga. Feb. 27,
2012) (“Because the . . . petition is successive and
petitioner has not sought or received authorization from the
Eleventh Circuit to file it, this Court is not at liberty to
consider it.”). “This is true even if the latter
petition purports to raise new claims.” Thornton v.
Fortniss, 2015 WL 300396 at * 2 (N.D. Ala. Jan. 22,
2015); see also Patterson v. Sec'y, Fla. Dep't of
Corrs., 849 F.3d 1321, 1325 (11th Cir. 2017)
(“Whether a petition is second or successive depends on
the judgment challenged.” (quotes and cite
omitted)); King v. Sec'y, Fla. Dep't of
Corrs., 671 F. App'x 738, 739 (11th Cir. 2016)
(citing Insignares v. Sec'y, Fla. Dept't of
Corr., 755 F.3d 1273, 1279 (11th Cir. 2014))
(“Though [§ 2254 petitioner] purports to raise new
claims, the bar to successive applications is not
regard, the dismissal of an untimely petition is a decision
on the merits, rendering further petitions successive.
See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir.
2005) (“We hold that dismissal of a § 2254
petition for failure to comply with the one-year statute of
limitations constitutes an adjudication on the merits that
renders future petitions under § 2254 challenging the
same conviction ‘second or successive' petitions
under § 2244(b).”); see also Blocker v.
Danforth, 2013 WL 395131 at * 2 n. 4 (S.D. Ga. Jan. 2,
2013) (time-bar dismissal was denial of § 2254 petition
on the merits).
Ingram has filed this petition without prior Eleventh Circuit
approval, this Court is without subject-matter jurisdiction
to consider it. Consequently, it should be DISMISSED as
successive. Applying the Certificate of Appealability (COA)
standards set forth in Brown v. United States, 2009
WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court
discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue. 28 U.S.C. §
2253(c)(1). And, as there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal should
likewise be DENIED. 28 U.S.C. § 1915(a)(3).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F. App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.
 Ingram's petition does not
identify the warden of Georgia State Prison, except
anonymously by his position. See doc. 1 at 1.
Ordinarily, the Court would require the petitioner or the
State to provide the Warden's full name and substitute
him as the proper respondent. Since the Court lacks subject
matter jurisdiction to consider Ingram's petition, it