Oberwise v. Secretary, Department of Corrections et al

Filing 6

ORDER dismissing the application; denying as moot 3 --motion for leave to proceed in forma pauperis; denying 5 --motion for appellate review; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 12/2/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EDWARD OBERWISE,
Petitioner,
v.

CASE NO. 8:14-cv-2939-T-23TBM

SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Oberwise applies for the writ of habeas corpus under 28 U.S.C. § 2254
(Doc. 1) and challenges the validity of his state conviction for five counts of lewd and
lascivious battery, for which he is imprisoned for twenty years. Rule 4, Rules
Governing Section 2254 Cases, requires both a preliminary review of the application
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 . . . .” Oberwise is barred from pursuing this
second or successive application.
The only ground for relief asserted in the present application was presented in
Oberwise’s earlier challenge to this same conviction in 8:11-cv-1124-T-30TGW,
which application was rejected on the merits. 1 Both the district court and the circuit
1

The order in the earlier case dismissed this specific ground as procedurally barred but also
explained why this specific ground lacks merit. Oberwise’s other ground was denied on the merits.
Additionally, Oberwise is time-barred from pursuing the present ground because his one-year

court declined to issue a certificate of appealability. (Doc. 19 and 25 in 11-cv-1124)
On May 12, 2013, the Supreme Court denied Oberwise’s petition for a writ of
certiorari. (Doc. 27 in 11-cv-1124) Oberwise is precluded from pursuing a second or
successive application 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). Oberwise must convince the circuit court of his
entitlement to file a second or successive application.
Additionally, Oberwise moves (Doc. 5) “for Review of Order Denying PostTrial Release” in which he erroneously attempts to invoke federal appellate
jurisdiction of the state court’s denial of his release while the direct appeal was
pending. A federal district court may not review a state court’s ruling because a
federal court has no supervisory or appellate jurisdiction over a state court.
It is well settled that a federal district court lacks jurisdiction to
review, reverse, or invalidate a final state court decision. See
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust
Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 2d 362 (1923).
Under the Rooker-Feldman doctrine, the authority to review final
limitation expired while the earlier federal action was pending. Although the one-year limitation
tolls for a properly-filed post-conviction application in state court, Artuz v. Bennett, 531 U.S. 4, 8-9
(2000) (defining when an application is “properly filed” under 28 U.S.C. § 2244(d)(2)), the one-year
limitation is not tolled during the pendency of a Section 2254 application. Duncan v. Walker, 533
U.S. 167 (2001).
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decisions from the highest court of the state is reserved to the
Supreme Court of the United States. Dale v. Moore, 121 F.3d
624 (11th Cir. 1997). Jones cannot utilize 42 U.S.C. § 1983 to
recast his claim and thereby obtain collateral review in federal
court of the state court decision. Berman v. Florida Bd. of Bar
Examiners, 794 F.2d 1529 (11th Cir. 1986).

Jones v. Crosby, 137 F.3d 1279, 1280 (11th Cir.), cert. denied, 523 U.S. 1041 (1998). A
federal district court lacks jurisdiction to adjudicate “cases brought by state-court
losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005). See also Christophe v. Morris, 198 Fed. App’x 818, 825 (11th Cir. 2006)2
(construing part of a complaint as a challenge to a state court adjudication and
holding the claim barred under Rooker-Feldman).
Accordingly, the application for the writ of habeas corpus (Doc. 1) is
DISMISSED and the motion for leave to proceed in forma pauperis (Doc. 3) is
DENIED as moot. The motion (Doc. 5) seeking appellate review of the state court’s
denial of post-trial release is DENIED. The clerk must close this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Oberwise 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

2

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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denial of his application. 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,
Oberwise 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 application is clearly a second or successive
application, Oberwise is entitled to neither a COA nor leave to appeal in forma
pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Oberwise must obtain authorization from the circuit
court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on December 2, 2014.

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