Opinion
Case No.: 3:19-cv-00294-KOB-SGC
04-29-2019
THOMAS JAMES ROBERTS, Petitioner, v. GUY NOE, et al., Respondents.
MEMORANDUM OPINION
Thomas James Roberts, an Alabama state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On April 15, 2019, the magistrate judge entered a report and recommendation that this action be dismissed without prejudice for lack of jurisdiction because the petition is successive and Roberts has not obtained authorization from the Eleventh Circuit, as required by 28 U.S.C. § 2244(b). (Doc. 3). Roberts filed timely objections to the report and recommendation. (Doc. 4).
Roberts' objections are frivolous and do not address his lack of authorization to bring a successive petition in this court. Moreover, as to Roberts' objection that he has newly-discovered evidence demonstrating he did not receive a complaint charging him with a crime prior to being indicted, the court notes that in Alabama, a prosecutor may seek an indictment directly from a grand jury without first obtaining a complaint. See Coleman v. Alabama, 399 U.S. 1, 8 (1970); § 15-3-7 Code of Alabama 1975 ("A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender"); Petkovich v. Reynolds, 2015 WL 1863130, *4 (M.D.Ala. Apr. 23, 2015) ("In Alabama, a criminal prosecution begins in one of three ways: 'finding an indictment, the issuing of a warrant or by binding over the offender.'"). Accordingly, the court OVERRULES Roberts' objections.
Having carefully reviewed and considered de novo all the materials in the court file, including the magistrate judge's report and recommendation and Roberts' objections to it, the court ADOPTS the magistrate judge's findings and ACCEPTS her recommendation. Roberts' petition for a writ of habeas corpus is due to be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
The court will enter a separate Final Order.
DONE and ORDERED this 29th day of April, 2019.
/s/_________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE