Smith v. Secretary, Department of Corrections et al

Filing 3

ORDER: Petitioner's petition 1 is DISMISSED without prejudice. 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). The Clerk shall terminate any pending motions, and close this case. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 11/15/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRIAN K. SMITH,
Petitioner,
-vs-

Case No. 8:13-CV-2842-T-30AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
______________________________/
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 convictions for two
counts of first degree murder and two counts of robbery entered in 1989 and 1990 by the
Sixth Judicial Circuit Court, Pinellas County, Florida (Dkt. 1).
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 appropriate
court of appeals for an order authorizing the district court to consider the application."
§ 2244(b)(3)(A).
Petitioner has previously sought federal habeas relief in this Court regarding the
convictions he challenges in this action. See Smith v. Singletary, 8:94-cv-859-T-17TGW
(M.D. Fla. 1994) (petition denied March 26, 1998); Smith v. Singletary, 8:97-cv-298-T26MSS (M.D. Fla. 1997) (petition denied December 9, 1999). Therefore, this is a second or
successive petition.1
Consequently, 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 successive petition. Therefore, this Court is without jurisdiction
to consider the petition, and this case will be dismissed without prejudice to allow Petitioner
the opportunity to seek said authorization.2
ACCORDINGLY, the Court ORDERS that:

1
Petitioner acknowledges that he previously sought federal habeas relief in this Court regarding the
convictions he challenges in the instant petition (Dkt. 1 at page 10).
2

See Wells v. AG, 2012 U.S. App. LEXIS 7542, at *4 (11th Cir. Apr. 16, 2012) (unpublished)
(district court must dismiss second or successive § 2254 petition for lack of jurisdiction unless the prisoner has obtained
an order from court of appeals authorizing the district court to consider it).

2

1.

Petitioner’s petition (Dkt. 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).
3.

The Clerk shall terminate any pending motions, and close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS DENIED

Because the petition is successive as defined by § 2244(b)(3)(A), the Court declines
to issue a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section
2254 Cases in the United States District Courts. Because Petitioner is not entitled to a
certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on November 15, 2013.

SA:sfc
Copy furnished to:
Pro se Petitioner

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