Harris v. Secretary, Department of Corrections et al

Filing 2

ORDER that the petition is dismissed as successive. The Court declines to issue a certificate of appealability and Petitioner may not appeal in forma pauperis. The Clerk is directed to close this case. Signed by Judge Virginia M. Hernandez Covington on 8/24/2011. (SM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GREGORY TYRONE HARRIS,
Petitioner,
v.

Case No. 8:11-cv-1915-T-33TBM

SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent.
_______________________________

ORDER
Petitioner, an inmate of the Florida penal system proceeding pro se, filed a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and
sentence for strong army robbery entered by the Circuit Court for the Thirteenth Judicial
Circuit, Hillsborough County, Florida.
Because Petitioner filed his request for federal habeas relief after the enactment
date of the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"),
the petition is governed by the provisions thereof. See Wilcox v. Singletary, 158 F.3d 1209,
1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). The AEDPA contains several
habeas corpus amendments, one of which established a "gatekeeping" mechanism for the
consideration of "second or successive habeas corpus applications" in the federal courts,
see 28 U.S.C. § 2244(b). See Stewart v. Martinez- Villareal, 523 U.S. 637, 641-42 (1998).
Section 2244(b) provides, in pertinent part, that before a second or successive application
for habeas corpus relief is "filed in the district court, the applicant shall move in the
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appropriate court of appeals for an order authorizing the district court to consider the
application." 28 U.S.C. § 2244(b)(3)(A).
Petitioner has previously sought federal habeas relief in this Court regarding the
conviction he challenges in this action. See Harris v. Charles J. Crist, Jr., Secretary,
Department of Corrections, 8:06-cv-1582-T- 27TGW (M.D. Fla. 2006) (denied August 10,
2009). Clearly, the present petition is a second or successive petition.
Therefore, pursuant to 28 U.S. C. § 2244(b )(3), Petitioner must seek and obtain
authorization from the Eleventh Circuit Court of Appeals prior to initiating this action. See
Medina v. Singletary, 960 F. Supp. 275, 277-78 (M.D. Fla. 1997) (and cases cited therein).
Petitioner has not shown that he has applied to the court of appeals for an order authorizing
this Court to consider his application. Without such prior authorization from the Eleventh
Circuit, this Court has no jurisdiction to consider the petition. See Fugate v. Dep't. of
Corrections, 301 F. 3d 1287 (11th Cir. 2002). Thus, this case will be dismissed without
prejudice to allow Petitioner the opportunity to seek said authorization.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's petition (Doc. 1) is DISMISSED without prejudice.
2. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for
second or successive habeas corpus petitions under 28 U.S.C. § 2244(b) and to close this
case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
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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"). Id. "A [COA] may issue ... only if the
applicant has made a substantial showing of the denial of a constitutional right." Id. at §
2253( c )(2). To merit a certificate of appealability, Petitioner must show that reasonable
jurists would find debatable both (1) the merits of the underlying claims and (2) the
procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926,935 (11th Cir 2001). Because the
petition is clearly a second or successive petition, Petitioner cannot satisfy the second
prong of the Slack test. 529 U.S. at 484.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on August 24, 2011.

Gregory Tyrone Harris

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