Joseph Anthony v. Secretary, Department of Corre, et al

Filing

Opinion issued by court as to Appellant Joseph Anthony. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-12784

Date Filed: 07/07/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12784
Non-Argument Calendar
________________________
D.C. Docket No. 9:15-cv-80570-KAM

JOSEPH M. ANTHONY,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 7, 2017)

Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:

Case: 15-12784

Date Filed: 07/07/2017

Page: 2 of 3

Joseph Anthony, a Florida state prisoner proceeding pro se, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 federal habeas corpus petition as
an unauthorized second or successive collateral attack. Anthony asserts the district
court failed to liberally construe his instant § 2254 petition and entertain it under
any proceeding it deemed proper. He also contends the state sentencing court
improperly failed to consider a presentence investigation report in sentencing him.
“We review de novo whether a petition for a writ of habeas corpus is second
or successive.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th
Cir. 2017) (en banc). We have held a district court’s order dismissing a habeas
petition for lack of jurisdiction as second or successive is not “a final order in a
habeas corpus proceeding,” such that no certificate of appealability is required to
appeal. Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004); 28 U.S.C.
§ 2253(c)(1)(A).
With respect to jurisdiction, 28 U.S.C. § 2244(b) requires a state prisoner
who wishes to file a “second or successive habeas corpus application” to move the
court of appeals for an order authorizing the district court to consider such an
application. 28 U.S.C. § 2244(b)(3)(A). If a petitioner has not obtained an order
authorizing the district court to consider a second or successive § 2254 petition, the
district court must dismiss the petition for lack of jurisdiction. Tompkins v. Sec’y,
Dep’t of Corr., 557 F.3d 1257, 1259 (11th Cir. 2009).
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Case: 15-12784

Date Filed: 07/07/2017

Page: 3 of 3

The district court did not err in dismissing Anthony’s instant § 2254 petition
based on its determination that the petition was successive. Anthony filed an
original § 2254 petition in 2007, which was denied, and the Supreme Court denied
a petition for writ of certiorari in 2009. Thus, Anthony’s instant § 2254 petition,
in which he sought to attack the same judgment as the one challenged in his 2007
§ 2254 petition, was successive, but he did not obtain this Court’s authorization to
file a successive petition. Thus, the district court was required to dismiss
Anthony’s petition for lack of jurisdiction, and liberally construing the petition
would not have affected the court’s obligation to dismiss it. See Tompkins, 557
F.3d at 1259. Additionally, to the extent Anthony argues the merits of his
underlying claims in his appellate brief, we need not consider them because the
district court lacked jurisdiction to consider those claims in his successive petition.
Accordingly, we affirm.
AFFIRMED.

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