United States District Court, W.D. North Carolina, Statesville Division
OWEN D. LEAVITT, Petitioner,
J. JAMES, Respondent.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Owen D.
Leavitt's pro se Petition for Writ of Habeas Corpus,
filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Also
before the Court are Petitioner's Motion to Proceed In
Forma Pauperis (“IFP”) (Doc. No. 2) and motion to
vacate his punishment obligation (Doc. No. 7).
reviewing the IFP Motion and a printed summary of
Petitioner's trust account balance (Doc. No. 3), the
Court is satisfied Petitioner did not have sufficient funds
to pay the filing fee when he filed his habeas Petition.
Therefore, the Court shall grant the IFP Motion.
8, 2012, Petitioner was found guilty of malicious conduct by
a prisoner after a trial by jury in the Superior Court of
Alexander County. (Pet. 1-2, Doc. No. 1.) Petitioner was
given a sentence of 20 to 24 months imprisonment to be served
at the conclusion of the sentence he was serving at the time
of his trial. Leavitt v. Joyner, No.
5:15-cv-00038-FDW, 2015 WL 7431396, at * 1 (W.D. N.C. Nov.
seeking appellate and post-conviction review in the state
courts, Petitioner filed a pro se petition for writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, in this Court on
March 2, 2015. Id. In it, he challenged his 2012
judgment for malicious conduct by a prisoner. Id.
The Court dismissed the habeas petition as untimely.
Id. at *4.
filed the instant § 2254 habeas Petition on May 14,
2018, in the United States District Court for the Eastern
District of North Carolina. (Doc. No. 1.) He again challenges
his 2012 judgment for malicious conduct by a prisoner. (Doc.
No. 1 at 1, 5-8.) On August 14, 2018, Petitioner filed a
Motion to vacate his remaining punishment obligation on
humanitarian grounds. (Doc. No. 7.) On October 22, 2018, the
Eastern District transferred the entire action to this Court,
where venue is proper. (Doc. No. 11.)
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 dismiss habeas petitions when it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. Rule 4, 28 U.S.C.A.
foll. § 2254. The Petition shall be dismissed because it
is Petitioner's second challenging his 2012 judgment for
malicious conduct by a prisoner, and he has not received
authorization from the Fourth Circuit Court of Appeals to
file a successive habeas petition challenging that judgment.
See 28 U.S.C. § 2244(b)(3)(A).
2244(b)(3) of Title 28 of the United States Code expressly
limits a petitioner's ability to attack the same criminal
judgment in multiple collateral proceedings. If a federal
district court denies or dismisses a state prisoner's
§ 2254 petition with prejudice, the prisoner generally
may not file another habeas 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 habeas 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).
demonstrated, Petitioner has previously challenged his 2012
criminal judgment by way of a § 2254 petition, which
this Court dismissed as untimely. Leavitt, No.
5:15-cv-00038-FDW, 2015 WL 7431396, at * 4. Petitioner has
not demonstrated that he has sought or received authorization
from the Fourth Circuit Court of Appeals to file a second or
successive habeas petition challenging his 2012 judgment.
See § 2244(b)(3)(A). Consequently, the Court
does not have jurisdiction to consider the instant habeas
Petition, and it must be dismissed. See Burton, 549
U.S. at 153; Winestock, 340 F.3d at 205.
Petitioner's Motion to vacate his remaining punishment
obligation, North Carolina Department of Public Safety
(“NCDPS”) records show Petitioner was released
from NCDPS custody on November 6, 2018. NCDPS Offender Public
(search Owen D. Leavitt, last reviewed March 31, 2019). Thus,
assuming the Court has the authority to grant
Petitioner's motion, the motion is now moot and shall be
denied as such.