United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Petition of Eddie Joseph
Brown, Jr. for Writ of Habeas Corpus  pursuant to 28
U.S.C. § 2254 and Respondent's Motion to Dismiss 
pursuant to 28 U.S.C. § 2244(b) or Alternatively,
Pursuant to 28 U.S.C. § 2244(d). Having considered the
Motion, the record, and the applicable law, the undersigned
recommends that Respondent's Motion to Dismiss  be
granted and the Petition  be dismissed.
is currently serving a prison term in the custody of the
Mississippi Department of Corrections after being convicted
on March 14, 2012 of possession of a controlled substance in
the Circuit Court of Harrison County, Mississippi. Doc. [6-1]
at 1. He was sentenced to serve thirty-two (32) years in the
custody of MDOC “without hope of parole or
probation” under Miss. Code Ann. Section 99-19- 81.
Mississippi Court of Appeals affirmed the conviction and
sentence. See Brown v. State of Mississippi, 143
So.3d 624 (Miss.Ct.App. 2014). Brown next sought leave to
file a motion for post-conviction collateral review in state
court. The Mississippi Supreme Court denied Brown's
application. See [6-8][6-9].
March 18, 2015,  Brown filed his first habeas petition
pursuant to § 2254 in federal court in Cause No.
1:15CV115- LG-RHW, challenging his March 14, 2012, conviction
and sentence for possession of a controlled substance. On
December 16, 2015, United States Magistrate Judge Robert H.
Walker issued a Report and Recommendation urging dismissal of
Brown's petition. On February 3, 2016, this Court issued
a “Memorandum Opinion and Order Adopting Report and
Recommendation” and separate “Final
Judgment” dismissing the petition. See [6-4].
Brown's request for a Certificate of Appealability (COA)
was denied that same date. See [6-5]. On February
23, 2017, the United States Court of Appeals for the Fifth
Circuit also denied Brown's request for a COA.
See [6-6]. The current petition , filed August
30, 2017, challenges the same conviction and sentence that
were challenged in his previous petition. See
Petition . Respondent filed his Motion  to Dismiss on
November 27, 2017.
petitioner who is filing a second or successive motion for
habeas relief must first apply to the appropriate court of
appeals for an order authorizing the district court to
consider the successive motion. 28 U.S.C. §
2244(b)(3)(A). The United States Court of Appeals for the
Fifth Circuit has defined “a second or successive
petition as one that 1) raises a claim challenging the
petitioner's conviction or sentence that was or could
have been raised in an earlier petition; or 2) otherwise
constitutes an abuse of the writ.” Garcia v.
Quarterman, 573 F.3d 214, 220 (5th Cir. 2009)(citing
In re Cain, 137 F.3d 234, 235 (5th Cir.
1998))(internal quotations omitted).
undersigned finds that Brown's challenge to his
conviction and sentence is a successive petition within the
meaning of 28 U.S.C. § 2244(b)(3)(A). Brown previously
filed a habeas petition challenging his conviction and
sentence, which was dismissed on the merits in Cause No.
submits that his previous petition was dismissed as a
“mixed petition” without prejudice. See
Petition  at 13-14. However, that is simply not the case.
In his first petition, Brown raised certain grounds related
to ineffective assistance of counsel that he did not exhaust
in state court. In the Report and Recommendation, the Court
Brown later filed a motion to amend his § 2254 petition
to delete all unexhausted claims, in which he listed the
three unexhausted ineffective assistance claims. Doc. .
It appears that Brown concedes that the unexhausted claims
are procedurally barred and therefore should be dismissed.
Accordingly, the undersigned recommends that the unexhausted
claims be dismissed based on procedural default. See
2254(b)(1)(A) (citations omitted).”
Court went on to address the merits of the remaining grounds
and denied them. The unexhausted grounds mentioned above were
dismissed as procedurally defaulted as the Report and
Recommendation of Judge Walker was adopted as the findings of
the Court. See Cause No. 1:15CV115- LG-RHW, Docket
Entry . Brown's request for a Certificate of
Appealability was denied that same date in this Court, and,
the United States Court of Appeals for the Fifth Circuit also
denied Brown's request for a COA. See [6-6].
is challenging the same conviction and sentence that he
challenged in his first habeas petition, but has not
submitted any documentation demonstrating that he has
obtained the required authorization from the United States
Court of Appeals for the Fifth Circuit before doing so.
Because the Fifth Circuit has not authorized him to file a
successive petition in this Court, the Court is without
jurisdiction to consider the petition and it should be
dismissed. See Jacobs v. Mississippi Dep't of
Corr., 2011 WL 196942, at *2 (S.D.Miss. Jan. 20,