Shaw v. Jones et al

Filing 8

OPINION AND ORDER dismissing without prejudice re: 1 Petition for writ of habeas corpus. The Clerk of Court is directed to close this case, terminate any pending motions, and enter judgment accordingly. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. The Clerk of the Court is also directed to send Petitioner an "Application for Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) by a Prisoner in State Custody" form. Signed by Judge Sheri Polster Chappell on 4/26/2018. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROGER SHAW,
Petitioner,
v.

Case No: 2:18-cv-24-FtM-99MRM

JULIE L. JONES and FLORIDA
ATTORNEY GENERAL,
Respondents.
/
OPINION AND ORDER1
This matter comes before the Court on initial review of the file. Petitioner, currently
incarcerated within the Florida penal system at Desoto Correctional Institution filed a
Petition for Habeas Corpus Relief pursuant to 28 U.S.C. ' 2254 (Doc. 1) on January 12,
2018. Petitioner challenges his 1974 conviction for first degree murder for which he is
serving a life sentence imposed by the Circuit Court for the Twelfth Judicial Circuit in and
for Manatee County, Florida. Because the case is in the early stages, no response has
been filed to the Petition. Upon review of the Petition, the Court concludes that this case
must be dismissed without prejudice to allow Petitioner the opportunity to seek

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authorization from the Eleventh Circuit Court of Appeals to file a second 28 U.S.C. § 2254
habeas petition.
BACKGROUND
On November 29, 1973, Petitioner was indicted for first degree murder for the
beating death of George Beckworth. (Doc. 1-1 at 6). Petitioner pled nolo contendere to
the charge on January 28, 1974. Id. at 10. Petitioner was seventeen years old at the time
with an IQ between sixty and seventy. Id. at 6. Petitioner was sentenced to life without
parole. Id. at 2.
Petitioner has filed two previous petitions for habeas relief with this Court relating
to his 1974 murder conviction and sentence, Shaw v. DOC, 8:10-cv-2490 (M.D. Fla.
2010); and Shaw v. DOC, 8:11-cv-1853 (M.D. Fla. 2011). Both prior petitions were
dismissed as time barred under the Anti-Terrorism and Effective Death Penalty Act
(AEDPA) 28 U.S.C. § 2244(d).

Petitioner filed the instant Petition on January 12, 2018.
DISCUSSION

Petitioner avers that his Petition should be granted because he was a juvenile
when he was convicted and sentenced to life in prison without parole. Petitioner argues
that the AEDPA statute of limitations does not apply to his case because recent Supreme
Court case law made sentencing a juvenile to life in prison without parole unconstitutional.
Petitioner argues that the Supreme Court ruling is retroactive and applies to his case.
However, Petitioner’s Petition is a successive petition it must be dismissed.
Federal courts are courts of limited jurisdiction, and may only hear cases where
authorized by the Constitution or by statute. See Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Title 28 U.S.C. § 2244 provides, in relevant part:

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(b)

(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A)

the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
Court, that was previously unavailable; or

(B)
(i)

(ii)

(3) (A)

the factual predicate for the claim could
not have been discovered previously
through the exercise of due diligence;
and
the facts underlying the claim, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that, but
for constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.

Before a second or successive application
permitted by this section is filed in the district
court, the applicant shall move in the appropriate
court of appeals for an order authorizing the
district court to consider the application.

28 U.S.C. § 2244 (emphasis added). Under this statute, a district court lacks jurisdiction
to hear a second or successive § 2254 habeas petition absent authorization from a Court
of Appeals. 28 U.S.C. § 2244(b)(3)(A).
Petitioner's first § 2254 habeas petition qualified as a first petition for the purpose
of determining successor status because it was dismissed as untimely. See Candelario
v. Warden, Case No. 14-11836, 2014 WL 6056234, at *2 (11th Cir. Nov. 14,
2014)(unpublished)(rejecting petitioner’s argument that his § 2255 petition was not

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successive because the initial § 2255 motion was denied as untimely rather than on the
merits and recognizing that “a second petition is successive if the first was denied or
dismissed with prejudice” and that a dismissal for untimeliness is with prejudice)(citing
Guenther v. Holt, 173 F.3d 1328, 1329 (11th Cir. 1999)); Murray v. Greiner, 394 F.3d 78,
81 (2d Cir. 2005)(“[D]ismissal of a § 2254 petition for failure to comply with the one-year
statute of limitations constitutes an adjudication on the merits that renders future petitions
under § 2254 challenging the same conviction ‘second or successive’ petitions under §
2244(b).”); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (a prior untimely § 2254
petition counts as a first petition because a statute of limitations bar is not a curable
technical or procedural deficiency but rather operates as an irremediable defect barring
consideration of the petitioner's substantive claims). Therefore, the instant petition is
“second or successive” for purposes of § 2244(b)(3).
Petitioner does not allege that he obtained the requisite permission from the
Eleventh Circuit Court of Appeals prior to filing the instant § 2254 petition. Rather,
Petitioner argues that the claims set forth in his new petition are not restricted by § 2244(d)
because the Supreme Court’s decision precluding sentencing a minor to life without
parole is applied retroactively, and therefore, his Petition is not barred from consideration.
(Doc. 1 at 13). This argument may be made to the Eleventh Circuit in Petitioner's
application for permission to file a successive motion. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner’s failure to obtain permission from the Eleventh Circuit prior to filing the
instant petition operates as a jurisdictional bar that precludes this Court's consideration
of the merits of the petition. See 28 U.S.C. § 2244(b)(3)(A).

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CERTIFICATE OF APPEALABILITY2
Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ
of habeas corpus has no absolute entitlement to appeal a district court's denial of his
petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (“COA”). “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, Petitioner must demonstrate that “reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
“the issues presented were ‘adequate to deserve encouragement to proceed further.’”
Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003). Petitioner has not made the requisite
showing in these circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.
Accordingly, it is now
ORDERED:
(1)

This case is hereby DISMISSED without prejudice. The Clerk of Court is

directed to close this case, terminate any pending motions, and enter judgment
accordingly.

2

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts,
the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.”

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(2)

The Clerk of the Court is also directed to send Petitioner an “Application for

Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) by a
Prisoner in State Custody” form.
DONE and ORDERED in Fort Myers, Florida this 26th day of April, 2018.

Copies:
All Parties of Record
SA: FTMP-2

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