Dinkens v. Secretary, Department of Corrections et al

Filing 3

ORDER OF DISMISSAL WITHOUT PREJUDICE, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 5/6/2015. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ENOCH E. DINKENS, JR.,
Petitioner,
vs.

Case No. 3:15-cv-528-J-34PDB

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner Enoch E. Dinkens, Jr., initiated this action on
April 23, 2015, by filing an "Extraordinary Summary Brief" (Brief;
Doc. 1). In the Brief, Dinkens asserts that the Circuit Court,
Fourth Judicial Circuit, in and for Nassau County, Florida, has
sanctioned him for filing "supposedly repetitious and frivolous
motions and petitions." Brief at 1. He therefore seeks relief in
this Court, and challenges his 2007 state court (Nassau County,
Florida) conviction for sexual battery upon a mentally defective
person and sentence (a term of life imprisonment). This Court takes
judicial notice of Petitioner's previous filing in this Court, in

which he challenged the same judgment of conviction he attacks
here: Case No. 3:09-cv-1174-J-34JRK. Before a second or successive
habeas corpus application may be filed in this Court, Dinkens is
required to obtain an order from the United States Court of Appeals
for

the

Eleventh

Circuit,

consider his application.

authorizing

the

district

court

to

See 28 U.S.C. § 2244(b)(3)(A). For this

reason, this case will be dismissed without prejudice to give
Petitioner the opportunity to seek the requisite authorization from
the Eleventh Circuit.
If Dinkens seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Dinkens "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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where

a

constitutional

district
claims

court
on

has

the

rejected

merits,

2

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

This case is DISMISSED without prejudice.

2.

The Clerk of Court shall enter judgment dismissing this

case without prejudice.
3.

If Dinkens appeals the dismissal of the case, the Court

denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case.

Such termination shall serve as a denial of the motion.
4.

The Clerk shall 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.
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5.

The Clerk of Court shall close this case.

DONE AND ORDERED at Jacksonville, Florida, this 6th day of
May, 2015.

sc 5/6
c:
Enoch E. Dinkens, #890658

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