REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Richard Daron Kenney, an Alabama prison inmate proceeding pro se, brought this action seeking federal habeas corpus relief in the Middle District of Alabama. (Doc. 1). That court recently transferred the action to this Court (Doc. 5), and as a result, the action is now before the undersigned Magistrate Judge for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases.
I. NATURE OF PROCEEDINGS
According to Kennedy's petition, and other records electronically maintained by this Court,
In the instant action, Kennedy seeks habeas relief pursuant to 28 U.S.C. § 2241. Kennedy asserts as follows: that the Alabama State Courts are depriving Kennedy of his constitutional rights "to obtain his fundamental due process to be heard based on newly discovered evidence" in the form of a confession by the guilty party; that the prosecutor in his trial failed to turn over exculpatory evidence; that the trial judge used "coercion tactics" on the jurors; that Kennedy is actually innocent of the crime charged; that Judge Lockett erred in refusing to rule on Kennedy's in forma pauperis motion on appeal; the state courts have "unlawfully impeded constitutional claims dealing with courts' authority to impose punishment (subject matter jurisdiction)"; and that the State of Alabama has "refused Kennedy his constitutional protection under the pro se litigant guarantees promised to him by federal law". (Doc. 1). The undersigned notes, as a preliminary matter, that because Kennedy is challenging his state sentence, and is in custody under the judgment of an Alabama court, 28 U.S.C. § 2254 applies to his petition despite his failure to designate it as one seeking relief under that statute. A state prisoner trying to obtain relief from his sentence cannot evade the procedural requirements of 28 U.S.C. § 2254 by filing a petition purporting to be something else.
The Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA") provides that before a state inmate can file a second or successive § 2254 petition, he must seek and obtain an order from the court of appeals authorizing the district court to consider the second or successive petition 28 U.S.C. §2244(b)(3)(A);
28 U.S.C. §2244(b)(3)(A). Without prior approval from the courts of appeals, the district court simply lacks authority to consider a "second or successive" application.
In this action, Kennedy does not allege and there is nothing in the record to suggest that he has requested and has received authorization from the Eleventh Circuit Court of Appeals to bring this successive petition before this Court. Thus, this Court is without subject-matter jurisdiction to consider Kennedy's petition, and as a result, this action is due to be dismissed.
III. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing 2254 Cases (December 1, 2009). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
When a habeas petition is dismissed on procedural grounds, such as in the instant case, without reaching the merits of any underlying constitutional claim, "a COA should issue [only] when the prisoner shows ... that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."
In the instant action, Kennedy has not demonstrated that he has applied to and received permission from the Eleventh Circuit to file this successive federal habeas petition; thus, this Court is without jurisdiction to consider the instant petition.
For the reasons set forth above, the undersigned recommends that the Court dismiss Kennedy's petition as an improper successive petition, and find that he is not entitled to a certificate of appealability, and is further not entitled to proceed in forma pauperis on appeal.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); S.D. ALA GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11