United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2254) filed by pro se Petitioner Dolph Finley
(“Finley”) (#075033). Finley is an inmate in the
custody of the Louisiana Department of Corrections,
incarcerated at the Raymond Laborde Correctional Center in
Cottonport, Louisiana. Finley challenges his sentence imposed
in the 9th Judicial District Court, Rapides Parish.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of the Court.
was convicted of first degree robbery. State v.
Finley, 664 So.2d 775, 776 (La.App. 3d Cir. 1995),
writ denied, 670 So.2d 1237 (La. 1996). He was
sentenced as a habitual offender to 50 years at hard labor.
Id. The conviction and sentence was affirmed, and
the Louisiana Supreme Court denied writs. Id. Finley
did not seek review in the United States Supreme Court.
filed an application for post-conviction relief on an
unspecified date. The application was denied, as were writs.
State ex rel. Finley v. State, 748 So.2d 437 (La.
filed a § 2254 petition in this Court in 1996,
challenging the robbery conviction and sentence. The petition
was denied on the merits, and a certificate of appealability
was denied. (Docket No. 96-cv-1695).
filed another § 2254 petition in this Court in 1999,
attacking the same robbery conviction. (Docket No.
99-cv-2059). The petition was denied and dismissed as
time-barred. (Docket No. 99-cv-2059, Doc. 8). Finley's
motion for certificate of appealability was denied by the
United States Court of Appeals for the Fifth Circuit. (Docket
No. 00-30255, 5th Cir.).
filed another § 2254 petition in this Court in 2002.
(Docket No. 1:02-cv-2112). The Court determined the petition
was second or successive, and transferred the case to the
Fifth Circuit for a determination of whether Finley should be
allowed to file a second or successive petition. (Docket No.
02-cv-2112, Doc. 7). The Fifth Circuit denied authorization.
(Docket No. 04-30010, 5th Cir.).
petition now before the Court, Finley complains that one of
the convictions used to adjudicate him a habitual offender
was not sufficiently proven at sentencing.
Law and Analysis
Finley has previously filed a § 2254 petition that was
adjudicated on the merits, and because he raises a claim that
could have been raised in an earlier petition, Finley's
petition is second or successive. See In re Cain,
137 F.3d 234, 235 (5th Cir. 1998). As this District Court
noted in one of Finley's prior habeas petitions:
[P]etitioner is required to obtain authorization to file this
second or successive petition from the United States Fifth
Circuit Court of Appeals in accordance with 28 U.S.C. §
2244(b)(3), which provides in part, “[b]efore a second
or successive application permitted by this section is filed
in the district court, the applicant shall move in the