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Stebbing v. Hershberger

United States District Court, Fourth Circuit

January 8, 2014

BERNARD LEE STEBBING, #157416 Petitioner,
v.
WARDEN GREGG L. HERSHBERGER, et al., Respondents.

MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Respondents, Gregg L. Hershberger, Warden of the Roxbury Correctional Institution, and Douglas F. Gansler, by their counsel, request dismissal of Bernard Lee Stebbing's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 for lack of jurisdiction and as untimely filed. For reasons to follow, the court finds a hearing is unnecessary and shall dismiss the motion without prejudice for lack of jurisdiction. See Local Rule 105.6. (D. Md. 2011).

On November 4, 2013, Stebbing filed this Petition challenging his convictions and sentence in 1981, in the Circuit Court for Wicomico County, Maryland, for murder, rape, and related offenses. His first petition challenging this judgment was denied on the merits by this court. ECF No. 3, Respondents' Exhibit 1.

Under these facts, the instant petition is successive. As such, it may not be considered by this court absent pre-filing authorization from the United States Court of Appeals for the Fourth Circuit as provided under 28 U.S.C. § 2244(b). Stebbing provides no evidence he has obtained prior approval to file this successive petition, and this case will be dismissed without prejudice for lack of jurisdiction.[1] Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the court declines to issue a certificate of appealability because Stebbing has not made a substantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).


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