Brown v. Secretary, Department of Corrections et al

Filing 5

ORDER dismissing without prejudice 1 --petition for writ of habeas corpus; 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 5/28/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GEORGE BROWN,
Petitioner,
v.

CASE NO. 8:15-cv-1203-T-23EAJ

SECRETARY, Department of Corrections,
Respondent.
/

ORDER
Brown applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1)
and challenges the validity of his 1967 state conviction for robbery with a firearm, for
which he is imprisoned for life as a habitual felony offender. The application is a
second or successive application without the requisite authorization from the circuit
court.
Brown’s earlier challenge under Section 2254 was denied and the denial was
affirmed on appeal in Brown v. Wainwright, 576 F.2d 1148 (5th Cir. 1978). Brown 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). Brown must prove to the
circuit court that he is entitled to a second or successive application, and until he
obtains authorization to file a second or successive application, the district court lacks
jurisdiction to review the application. 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 application for the writ of habeas corpus (Doc. 1) is
DISMISSED without prejudice. The clerk must close this case.

DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Brown 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 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,
Brown 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

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926, 935 (11th Cir 2001). Because the application is clearly a second or successive
application, Brown 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. Brown must obtain authorization from the circuit court
to appeal in forma pauperis.
ORDERED in Tampa, Florida, on May 28, 2015.

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