RUTLEDGE v. SMITH

• Court: District Court, M.D. Georgia
• Decided: March 23, 2021
• Docket: 5:21-cv-00025
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BOBBY RUTLEDGE, Petitioner, CIVIL ACTION NO. v. 5:21-cv-00025-TES-CHW TARMARSHE SMITH, et al., Respondent.

ORDER

Petitioner Bobby Rutledge has filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his July 1997 conviction and sentence in the Houston County Superior Court. [Doc. 1]. A review of this Court’s records reveals that Petitioner has filed a previous federal habeas corpus petition challenging this same conviction, which was dismissed in 2010. See Order Adopting Report & Recommendation, Rutledge v. Smith, No. 5:07-cv-00086-CAR (M.D. Ga. Mar. 26, 2010), ECF No. 72. “Before a second or successive application [for a writ of habeas corpus] 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); see also Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), cert. denied, 528 U.S. 1085 (2000). The instant Petition is considered successive within the meaning of § 2244(b). Moreover, it does not appear, and Petitioner does not allege, that a three- judge panel of the Eleventh Circuit Court of Appeals has authorized this Court to consider a successive habeas petition for his 1997 conviction. Without such an order,

this Court lacks jurisdiction to consider the successive claims. See § 2244(b)(3)(A); Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932, 933–34 (11th Cir. 2001) (per curiam).

The Court therefore DISMISSES the Petition for Writ of Habeas Corpus [Doc. 1] without prejudice to Petitioner’s right to file in the Eleventh Circuit a motion for leave to file a second or successive habeas petition pursuant to § 2244(b)(3).1 The Court also

DIRECTS the Clerk to furnish Petitioner with the application form required by the Eleventh Circuit.2 SO ORDERED, this 22nd day of March, 2021. S/ Tilman E. Self, III TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT

1 The Court also TERMINATES Petitioner’s pending Motion for Preliminary Injunction [Doc. 4] and Motion for Leave to Proceed In Forma Pauperis [Doc. 7] as moot.

2“[A] dismissal of a successive habeas petition for lack of subject-matter jurisdiction does not constitute a ‘final order in a habeas corpus proceeding’ for purposes of 28 U.S.C. § 2253(c). . . . Instead, such a dismissal is a ‘final decision’ pursuant to 28 U.S.C. § 1291 and a [Certificate of Appealability] is thus ‘unnecessary. . . .’” Bolin v. Sec’y, Fla. Dep’t of Corr., 628 F. App’x 728, 730 (11th Cir. 2016) (per curiam) (quoting Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (affirming dismissal of successive habeas petition for lack of subject-matter jurisdiction)). Accordingly, the Court will not address whether Petitioner has met the standards for issuance of a Certificate of Appealability.