United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon Wali Farad Muhammad
Bilal's pro se Petition for Writ of Habeas Corpus, filed
pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
is a prisoner of the State of North Carolina who, on October
13, 2001, was convicted by a Rutherford County Superior Court
jury of 2 counts of robbery with a dangerous weapon, assault
inflicting serious bodily injury, simple assault, and two
counts of second-degree kidnapping. He was sentenced to 32
years and 10 months in prison. (§ 2254 Pet. 1, Doc. No.
pursuing appellate and post-conviction relief in the state
courts, Petitioner filed a § 2254 Petition in this Court
on February 23, 2006, attacking his October 2001 judgment.
See § 2254 Pet., Bilal v. Harkleroad,
No. 1:06-cv-00082-MU ( N.C. W.D.), Doc. No. 1. The Court
dismissed the Petition as untimely on September 8, 2008.
Order Dismiss. § 2254 Pet., id. at Doc. No. 18.
filed the instant § 2254 Petition on May 15, 2019.
See Houston v. Lack, 487 U.S. 266, 267 (1988). He
again challenges his October 2001state judgment.
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 Court shall dismiss the instant
Petition because it is Petitioner's second challenging
his 2001 state judgment, and he has not demonstrated that the
Fourth Circuit Court of Appeals has authorized him 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). The district court does
not have jurisdiction to consider the merits of a successive
habeas application in the absence of authorization from the
appropriate federal court of appeals. 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).
previously challenged his 2001 criminal judgment by way of a
§ 2254 petition, which this Court dismissed as untimely.
Bilal, No. 1:06-cv-00082-MU, Doc. No. 18. A
dismissal of a habeas petition as time-barred is a decision
on the merits, and any subsequent habeas petition challenging
the same conviction or sentence is second or successive for
purposes of § 2244(b). See In re Rains, 659
F.3d 1274, 1275 (10th Cir. 2011) (per curiam); Quezada v.
Smith, 624 F.3d 514, 519-20 (2d Cir. 2010) (“We
hold that dismissal of a § 2254 petition for failure to
comply with the one-year statute of limitations constitutes
an adjudication on the merits that renders future petitions
under § 2254 challenging the same conviction
‘second or successive' petitions under §
2244(b).” (additional internal quotation marks
omitted)). Consequently, the instant habeas Petition is
successive under § 2244(b).
has not demonstrated that he received authorization from the
Fourth Circuit Court of Appeals to file this successive
habeas Petition. See § 2244(b)(3)(A).
Accordingly, the Court does not have jurisdiction to consider
the Petition, and it must be dismissed. See Burton,
549 U.S. at 153; Winestock, 340 F.3d at 205.
IS, THEREFORE, ORDERED that:
Petition for Writ of Habeas Corpus (Doc. No. 1) is
DISMISSED without prejudice as an
unauthorized, successive habeas ...