Rhodes v. Secretary, Department of Corrections et al

Filing 4

ORDER dismissing petition; denying as moot 2 --motion to hold case in abeyance; denying a certificate of appealability; denying leave to proceed on appeal in forma pauperis; directing the Clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 3/22/2013. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD W. RHODES, JR.,
Petitioner,
v.
SECRETARY, Department of Corrections,

Case No. 8:13-cv-686-T-23TBM
DEATH PENALTY

Respondent.
/
ORDER
Rhodes petitions for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1)
and challenges the validity of his state convictions for first degree murder and
attempted sexual battery, for which he was sentenced to death. Rule 4, Rules
Governing Section 2254 Cases, requires both a preliminary review of the petition for
the writ of habeas corpus and a summary dismissal “[i]f it plainly appears from the
face of the petition and any exhibits annexed to it that the petitioner is not entitled to
relief in the district court . . . .” Rhodes is barred from pursuing this second or
successive petition.
Rhodes’s previous challenge to this same conviction in 8:09-cv-1350-T-17AEP
was rejected on the merits. Both the district court and the circuit court declined to
issue a certificate of appealability. (Doc. 28 and 35) On October 1, 2012, the
Supreme Court denied Rhodes’s petition for a writ of certiorari. (Doc. 39)

Rhodes claims entitlement to a new right allegedly created by Martinez v. Ryan,
566 U.S. ___, 132 S. Ct. 1309, 1315 (2012), specifically that the “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” Rhodes
contends both that Martinez creates a new right and that some grounds in his earlier
federal petition were held procedurally barred because of post-conviction counsel’s
ineffectiveness.
Rhodes is precluded from pursuing a second or successive petition without
permission from the Eleventh Circuit Court of Appeals. “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(b)(3)(A). Felker v.
Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir.
1999). The creation of a new rule of constitutional law is a basis for pursuing a
second or successive petition. “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 . . . 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. . . .” 28 U.S.C. 2244(b)(2)(A).
Rhodes must prove to the circuit court that Martinez creates a new rule of
constitutional law that retroactively applies on collateral review. Until he obtains
-2-

permission to file a second or successive petition, the district court lacks jurisdiction
to review Rhodes’s petition. Burton v. Stewart, 549 U.S.147, 157 (2007) (“Burton
neither sought nor received authorization from the Court of Appeals before filing his
2002 petition, a ‘second or successive’ petition challenging his custody, and so the
District Court was without jurisdiction to entertain it.”).
Accordingly, the petition for the writ of habeas corpus (Doc. 1) is
DISMISSED without prejudice. The motion (Doc. 2) to hold this case in abeyance
is DENIED as moot. The clerk shall close this case.
DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Rhodes is not entitled to a certificate of appealability (“COA”). 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 COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a COA, Rhodes
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, Rhodes cannot meet Slack’s prejudice requirement. 529 U.S. at 484.

-3-

Finally, Rhodes is not entitled to appeal in forma pauperis because he is not entitled to
a COA.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in
forma pauperis on appeal is DENIED. Rhodes must pay the full $455 appellate filing
fee without installments unless the circuit court allows Rhodes to proceed in forma
pauperis.
ORDERED in Tampa, Florida, on March 22, 2013.

-4-