United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPP'S UNI TED STATE S 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 Superior Court of
Jefferson County, Georgia of multiple crimes, including
burglary with intent to commit a theft, burglary with intent
to commit a felony, and terroristic threats and acts. (Doc.
no. 1, p. 1.) The Georgia Court of Appeals affirmed his
convictions on December 6, 2005. (Id. at 2.)
Petitioner filed a state habeas corpus petition in the
Superior Court of Mitchell County, Georgia, and the court
denied the petition on January 27, 2009. (Id.)
Petitioner also appears to have applied for a certificate of
probable cause to appeal, which the Georgia Supreme Court
denied. (Id. at 3.) Petitioner filed an
extraordinary motion for new trial, which the Jefferson
County Superior Court denied on September 27, 2017.
(Id. at 4.) Petitioner filed an application for
discretionary appeal, which the Georgia Court of Appeals
denied on November 9, 2017.(Id.) Petitioner does not
report filing any prior request for federal habeas corpus
relief. (Id. at 1-5.) However, the Court is aware
Petitioner has filed a prior federal habeas corpus petition
related to the 2001 convictions. Nelson v. Frazier,
CV 108-033 (S.D. Ga. Mar. 6, 2008).
first federal petition, Petitioner argued he was entitled to
relief based on several grounds, including he was subjected
to double jeopardy, tried on a “multiplicitous and
duplicitous indictment, ” and his sentence was
invalid. CV 108-033, doc. no. 16, pp. 4-6. Chief
United States District Judge J. Randal Hall denied the
petition as procedurally defaulted and entered final judgment
in favor of the respondent. Id., doc. nos. 16, 21.
The Eleventh Circuit Court of Appeals granted a certificate
of appealability, however, Petitioner conceded in his
appellate brief the claim was procedurally defaulted, and the
Eleventh Circuit affirmed the Court's denial of his
petition. Id., doc. nos. 32, 37.
August 10, 2015, Petitioner filed a motion for leave to file
a second or successive § 2254 petition, which the
Eleventh Circuit Court of Appeals denied. See In re:
Lindsey Nelson, Jr., No. 15-13575-C, slip op.
(11th Cir. Sep. 1, 2015), also docketed in CV 108-033, doc.
September 4, 2018 Petitioner filed the instant request for
federal habeas corpus relief, arguing (1) merger claims
cannot be waived, (2) the trial court erred by merging
grounds one and two of his indictment, (3) grounds two and
three of his indictment should have been merged, and (4) the
indictment was multiplicitous and duplicitous. (See
generally doc. no. 1.)
Petitioner filed a prior application for a federal writ of
habeas corpus, the current application is 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: Lindsey Nelson, Jr.,
No. 15-13575-C. 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 ...