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Finley v. Warden

United States District Court, W.D. Louisiana, Alexandria Division

January 22, 2018

DOLPH FINLEY, Petitioner
v.
WARDEN, Respondent

          DEE D. DRELL, JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge

         Before 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.

         This 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.

         I. Background

         Finley 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.

         Finley 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. 1999).

         Finley 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).

         Finley 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.).

         Finley 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.).

         In his 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.

         II. Law and Analysis

         Because 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 appropriate ...

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