United States District Court, S.D. Georgia, Augusta Division
DEMARCUS A. GRESHAM, Petitioner,
MARTY ALLEN, Respondent.
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE
case, filed pursuant to 28 U.S.C. § 2254, is before the
Court for initial review pursuant to Rule 4 of the Rules
Governing Section 2254 Cases. The Court
REPORTS and RECOMMENDS the
§ 2254 petition be DISMISSED, and this
civil action be CLOSED.
reports he was convicted in 2001 in the Wilkes County
Superior Court of multiple crimes, including armed robbery,
burglary, possession of a knife, and theft by taking. (Doc.
no. 1, p. 1.) Petitioner appealed to the Georgia Court of
Appeals, and his convictions were affirmed on April 15,
2004. (Id. at 2.) Indeed, Petitioner
reports filing multiple requests for post-conviction relief
in various state courts, but he does not report filing any
prior request for federal habeas corpus relief. (Id.
at 2-5.) However, the Court is aware Petitioner has filed two
prior federal habeas corpus petitions. Gresham v.
Allen, CV 116-044 (S.D. Ga. Apr. 15, 2016); Gresham
v. Georgia, CV 316-084 (S.D. Ga. Nov. 8, 2016).
first federal petition, Petitioner argued his Eighth
Amendment rights had been violated, he received ineffective
assistance of counsel, and he had been falsely
imprisoned.CV 116-044, doc. no. 14, p. 2. Chief United
States District Judge J. Randal Hall dismissed the petition
as untimely. Id., doc. nos. 14, 16. Petitioner did
not request a Certificate of Appealability to appeal to the
Eleventh Circuit Court of Appeals. Petitioner's second
federal habeas corpus petition argued he had been forced to
plead guilty, but United States District Judge Dudley H.
Bowen, Jr., dismissed the petition as successive. CV 316-084,
doc. nos. 9, 15.
then filed the instant request for federal habeas corpus
relief, his third in this Court, arguing again he received
ineffective assistance of counsel, his due process rights had
been violated, and he has been falsely imprisoned because his
guilt was never actually proven. (See generally doc.
no. 1.) While this Court was waiting for Petitioner to comply
with the Clerk's deficiency notice regarding payment of
the $5.00 filing fee or a motion to proceed IFP, the Eleventh
Circuit Court of Appeals denied Petitioner's request to
file a second or successive § 2254 petition. See In
re: Demarcus Gresham, No. 18-10410-K, slip op.
(11th Cir. Feb. 16, 2018), also docketed in CV 316-084, doc.
to the Court's power to take judicial notice of its own
records, the Court finds that Petitioner has filed two prior
applications for a federal writ of habeas corpus, thereby
making the current application successive.
relevant portion of 28 U.S.C. § 2244(b)(3)(A), as
amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) states as follows:
“Before a second or successive [habeas corpus]
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). Thus, § 2254 petitioners must
“obtain authorization in the court of appeals before
filing a second or successive [habeas corpus] application . .
. .” Guenther v. Holt, 173 F.3d 1328, 1332
(11th Cir. 1999). Without this authorization, the district
court correctly dismisses second and successive habeas corpus
applications. In re Medina, 109 F.3d 1556, 1564
(11th Cir. 1997), overruled on other grounds by Stewart
v. Martinez-Villareal, 523 U.S. 637 (1998).
Petitioner has not been granted permission from the Eleventh
Circuit to file a second or successive § 2254 petition.
In fact, the Eleventh Circuit Court of Appeals specifically
rejected Petitioner's request to file a second or
successive petition. See In re: Demarcus Gresham,
No. 18-10410-K. Without such authorization, this Court cannot
consider Petitioner's claims. See United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (explaining
AEDPA's restrictions on second or successive petitions
and concluding “[w]ithout authorization, the district
court lacks jurisdiction to consider a second or successive
petition”); see also In re Medina, 109 F.3d at
1564 (affirming dismissal of claims as successive because the
petitioner did not first file an application with the
on an initial review of the petition as required by Rule 4 of
the Rules Governing Section 2254 Cases, the Court finds
Petitioner has filed a successive application for a federal
writ of habeas corpus without first obtaining the requisite
authorization from the Eleventh Circuit Court of Appeals.
Therefore, the Court REPORTS and
RECOMMENDS the § 2254 petition be
DISMISSED, and this civil action be