United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon initial review of
Patrick Ricardo Smith's pro se Petition for Writ of
Habeas Corpus, 28 U.S.C. § 2254. (Doc. No. 1.)
is a prisoner of the State of North Carolina, who, on May 7,
2004, was convicted by a jury in Mecklenburg County Superior
Court of robbery with a dangerous weapon. State v.
Smith, 616 S.E.2d 30, 2005 WL 1804930 ( N.C. Ct. App.
2005) (unpublished). He was sentenced to 150-189 months in
conviction was affirmed on appeal, but his sentence was
vacated and his case remanded for resentencing. Id.
According to Petitioner, he was resentenced on February 14,
2006, to 90-117 months in prison. (§ 2254 Pet. 2, Doc.
pursuing post-conviction relief in the state courts,
Petitioner timely-filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in this Court on October
28, 2010. Order Grant. Summ. J. 3, Smith v. North
Carolina, No. 3:10-cv-542-RJC, 2012 WL 707004 (W.D. N.C.
filed Mar. 5, 2012), Doc. No. 9. The Court concluded that the
claims raised in the petition were procedurally defaulted,
granted the State summary judgment, and dismissed the
petition. Id. at 3-5. The Fourth Circuit Court of
Appeals denied Petitioner a certificate of appealability and
dismissed his appeal of this Court's order denying
relief. Smith v. North Carolina, 474 F. App'x
895, 2012 WL 3125706 (4th Cir. 2012) (unpublished), cert.
denied, 568 U.S. 1176 (2013) (Mem).
has now filed a second § 2254 habeas Petition in this
Court. (Doc. No. 1.) He again challenges the judgment entered
against him in Mecklenburg County him on May 7, 2004.
STANDARD OF REVIEW
Court is guided by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which directs
district courts to examine habeas petitions promptly. 28
U.S.C. § 2254 Rule 4. When it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief, the court must dismiss the motion.
Antiterrorism and Effective Death Penalty Act of 1996
expressly limits a petitioner's ability to attack the
same criminal judgment in multiple collateral proceedings.
See 28 U.S.C. § 2244(b)(3). If a federal
district court denies or dismisses a state prisoner's
§ 2254 petition with prejudice, the prisoner generally
may not file another § 2254 petition challenging the
same state criminal judgment unless he has obtained
permission to do so from the appropriate federal court of
appeals. See § 2244(b)(3)(A). If the prisoner
files a subsequent § 2254 petition without authorization
from the appropriate federal court of appeals, the district
court is required to dismiss the petition without considering
its merits. See Burton v. Stewart, 549 U.S. 147, 153
(2007) (holding that failure of petitioner to obtain
authorization to file a “second or successive”
petition deprived the district court of jurisdiction to
consider the second or successive petition “in the
first place”); United States v. Winestock, 340
F.3d 200, 205 (4th Cir. 2003) (“In the absence of
pre-filing authorization, the district court lacks
jurisdiction to consider an application containing abusive or
repetitive claims.”) (citation omitted).
has not demonstrated that he has obtained the required
authorization from the Fourth Circuit to file a successive
habeas petition challenging his May 7, 2004 judgment.
See § 2244(b)(3)(A). Consequently, the instant
Petition must be dismissed. See Burton, 549 U.S. at
153; Winestock, 340 F.3d at 205.
IS, THEREFORE, ORDERED that the Petition for Writ of
Habeas Corpus, 28 U.S.C § 2254, (Doc. No. 1) is
DISMISSED without prejudice as an
unauthorized, successive habeas petition.
IS FURTHER ORDERED that pursuant to Rule 11(a) of
the Rules Governing Section 2254 Cases, the Court declines to
issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional
right. 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong);
Slack v. McDaniel529 U.S. 474, 484 (2000) (holding
that when relief is denied on procedural grounds, a
petitioner must establish ...