Reeves v. Dunn
ORDER denying 13 Motion to Alter or Amend Judgment. Signed by Chief Judge William H. Steele on 9/4/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 15-0288-WS-M
This matter is before the Court on the petitioner’s motion to alter or amend
judgment. (Doc. 13). The motion is timely filed. Fed. R. Civ. P. 59(e).
The petitioner argues his mandatory life sentence for an offense occurring
when he was 16 is unconstitutional under Miller v. Alabama, 132 S. Ct. 2455
(2012). The Supreme Court recently considered a petition for writ of certiorari
raising the following question: “[W]hether Miller adopts a new substantive rule
that applies retroactively on collateral review to people condemned as juveniles to
die in prison?” 2014 WL 4441518 (petition for certiorari). The Supreme Court
granted cert in March to answer this question. Montgomery v. State of Louisiana,
135 S. Ct. 1546 (2015). The petition was filed in May. (Doc. 1).
Because the petitioner had filed and pursued a previous petition under
Section 2254, he was required to obtain an order from the Eleventh Circuit
authorizing a second or successive petition before filing the instant petition. 28
U.S.C. § 2244(b)(3). The petitioner violated this law by filing his petition
contemporaneously with his filing of an application with the Eleventh Circuit for
permission to file his petition. (Doc. 13 at 2). The Magistrate Judge entered an
order to show cause why the action should not be dismissed on this basis, (Doc. 7),
but before the petitioner even responded the Eleventh Circuit affirmatively denied
leave to file this petition. (Doc. 13 at 3). The Court adopted the report and
recommendation of the Magistrate Judge (“the R&R”) that the action be dismissed
for failure to obtain the required appellate permission, and it dismissed the action
for lack of jurisdiction. (Doc. 11).
The petitioner argues (as he did previously) that the Court should stay this
action rather than dismiss it. (Doc. 13 at 4-6). However, the failure to obtain
appellate permission deprives the Court of subject matter jurisdiction.1 “Simply
put, once a federal court determines that it is without subject matter jurisdiction,
the court is powerless to continue,” and “the only function remaining to the court
is that of announcing the fact and dismissing the cause.” University of South
Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (internal
quotes omitted). The petitioner’s authorities do not remotely suggest that a court
without subject matter jurisdiction nevertheless may stay, and thereby retain (nonexistent) jurisdiction over, the case.2
The petitioner next argues (for the first time) that the Eleventh Circuit
should have granted him permission to pursue this petition, that it made “manifest
“Because we conclude that Petitioner’s motion raises a new habeas claim
without first securing this Court’s permission to file a second or successive habeas
petition, the District Court lacked subject-matter jurisdiction even to consider Petitioner’s
claim. [citations omitted] We therefore vacate the District Court’s judgment and remand
with instructions to dismiss Petitioner’s motion for lack of subject-matter jurisdiction.”
Franqui v. Florida, 638 F.3d 1368, 1375 (11th Cir. 2011); accord Williams v. Chatman,
510 F.3d 1290, 1295 (11th Cir. 2007) (“Williams was required to move this Court for an
order authorizing the district court to consider a successive habeas petition [and]
[w]ithout such authorization, the district court lacked subject matter jurisdiction to
consider the successive petition ….”); Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th
Cir. 2004) (where the trial court dismissed the petition for failure to obtain appellate
leave to file a second or successive petition, “[w]e agree with the district court that it
lacked subject matter jurisdiction to entertain the Amended Petition, and that the court
was obliged to dismiss it for that reason.”).
Perhaps because the proposition is so obvious, few courts have expressly said
that a stay cannot be entered in the absence of subject matter jurisdiction. But those that
have considered the question have uniformly answered it adversely to the petitioner.
E.g., Dresser-Rand Co. v. Ingersoll Rand Co., 2015 WL 4254033 at *9 (S.D.N.Y. 2015)
(citing cases); Foster v. Stroebel & Johnson, 2015 WL 2378643 at *1 (S.D.W. Va. 2015);
Novie v. Village of Montebello, 2012 WL 3542222 at *16 n.32 (S.D.N.Y. 2012); Crawley
v. Burke, 2011 WL 4808836 at *4 (D. Minn.), report and recommendation adopted, 2011
WL 4808865 (D. Minn. 2011).
errors of fact and law” when it denied him permission to do so, and that the Court
should “correct these manifest errors of law and fact” by disregarding the Eleventh
Circuit’s ruling. (Doc. 13 at 3, 6-9). This shocking proposal is unsupported even
by any pretense of legal authority; indeed, the petitioner admits the Court “is
bound by the authority of the Eleventh Circuit.” (Id. at 6). That is true not only as
a general matter of hierarchy but as a matter of legislative command, since Section
2244(b) makes the prior grant of appellate permission an absolute prerequisite to
filing in this Court.3
The Court remains uncertain why the petitioner fears dismissal of his
petition. The dismissal is of course without prejudice,4 so it does not preclude him
from filing a petition if and when he receives appellate permission to do so. And
the petitioner admits the Eleventh Circuit has already told him that its denial of
permission to file the instant petition “does not preclude [him] from filing [a] new
successive application after the Supreme Court decides Montgomery.” (Doc. 10
at 4.). But even if the petitioner has grounds for concern, they do not permit the
Court to retain jurisdiction over a case as to which, as a matter of law, it has no
For the reasons set forth above, the motion to alter or amend judgment is
DONE and ORDERED this 4th day of September, 2015.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
Nor did the Court “rel[y] on” the Eleventh Circuit’s order in dismissing his
petition, as the petitioner erroneously asserts. (Doc. 13 at 6). The R&R noted the
appellate order but rested (properly) on the fact that the Court’s “review of this petition is
barred without a certificate from the Eleventh Circuit Court of Appeals pursuant to 28
U.S.C. § 2244(b).” (Doc. 9 at 4). What dooms the petition is not the denial of
permission but the absence of permission.
E.g., Stalley ex rel. United States v. Orlando Regional Healthcare System, Inc.,
524 F.3d 1229, 1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction
is not a judgment on the merits and is entered without prejudice.”).
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