Parker v. Warden Smith et al, No. 5:2022cv00813 - Document 10 (N.D. Ala. 2023)

Court Description: MEMORANDUM OPINION AND ORDER- After careful consideration of the record in this case and the Magistrate Judge's report and objections, the court ADOPTS the report and ACCEPTS the recommendation. Consistent with that recommendation, the court fin ds that Mr. Parker's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, 1 , is due to be dismissed without prejudice because the court lacks jurisdiction over Mr. Parker's successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).A final judgment will be entered. It is ORDERED that Mr. Parker's Motion for Preliminary Injunction, 5 , is DISMISSED. Signed by Judge Anna M Manasco on 07/10/2023. (AKD)

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Parker v. Warden Smith et al Doc. 10 FILED 2023 Jul-10 PM 03:14 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION SHAQUILLE PARKER, Petitioner, v. WARDEN SMITH, et al., Respondents. ) ) ) ) ) Case No. 5:22-cv-00813-AMM-HNJ ) ) ) ) MEMORANDUM OPINION AND ORDER The Magistrate Judge entered a report, Doc. 8, on May 16, 2023, recommending that Petitioner Shaquille Parker’s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Doc. 1, be dismissed without prejudice because the court lacks jurisdiction over Mr. Parker’s successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A) and that Mr. Parker’s Motion for Preliminary Injunction, Doc. 5, be denied. The court received Mr. Parker’s Objection to Recommendation to Dismiss (“Objection”) on May 31, 2023. Doc. 9. In his Objection, Mr. Parker admits the Court of Appeals for the Eleventh Circuit denied him authorization to file a second or successive habeas petition, Id. at 3, but argues the dismissal of this case would result in a manifest injustice as prison officials withheld Mr. Parker’s legal mail for two weeks which caused him to miss Dockets.Justia.com his deadline to file a petition for a writ of certiorari with the Alabama Supreme Court. 1 Id. at 1–2. As the Magistrate Judge correctly set forth in his Report and Recommendation, this court lacks jurisdiction to hear a second or successive § 2254 petition in the absence of authorization from the Eleventh Circuit. Doc. 8 at 3–5. The Eleventh Circuit denied Mr. Parker the requisite authorization. Doc. 9 at 3. As such, Mr. Parker’s Objection lacks merit. After careful consideration of the record in this case and the Magistrate Judge’s report and objections, the court ADOPTS the report and ACCEPTS the recommendation. Consistent with that recommendation, the court finds that Mr. Parker’s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Doc. 1, is due to be dismissed without prejudice because the court lacks jurisdiction over Mr. Parker’s successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A). A final judgment will be entered. It is ORDERED that Mr. Parker’s Motion for Preliminary Injunction, Doc. 5, is DISMISSED. 1 Mr. Parker presently maintains a 42 U.S.C. § 1983 action before the court in which he seeks monetary and injunctive relief for the alleged withholding of his legal mail. See Shaquille Parker v. Deandrea Pugh, et al., No. 2:22-cv-00722-CLM-HNJ (N.D. Ala. filed June 8, 2022). 2 DONE and ORDERED this 10th day of July, 2023. _________________________________ ANNA M. MANASCO UNITED STATES DISTRICT JUDGE 3

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