Keno v. Twelfth Judicial Circuit for Sarasota County, Florida et al

Filing 5

ORDER dismissing without prejudice 1 --application for the 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 3/20/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DARNELL KENO,
Applicant,
v.

CASE NO. 8:17-cv-515-T-23JSS

SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Keno’s paper entitled “Motion for/to Correct Illegal Sentence, by Manifest
Injustice and by Conflict Judge” (Doc. 1) is construed as an application under
28 U.S.C. § 2254 for the writ of habeas corpus.* Keno is imprisoned for life as a
prison releasee re-offender under a state court judgment for armed robbery with a
deadly weapon. 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 [application] and any exhibits
annexed to it that the [applicant] is not entitled to relief in the district court . . . .”
Keno is barred from pursuing this “second or successive” application.

*

If construed as a civil rights complaint, Keno’s paper warrants dismissal because the
district court lacks jurisdiction to review the challenged state court ruling. Jones v. Crosby, 137 F.3d
1279, 1280 (11th Cir.) (“It is well settled that a federal district court lacks jurisdiction to review,
reverse, or invalidate a final state court decision.”), cert. denied, 523 U.S. 1041 (1998); Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (“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.”).

Keno’s earlier challenge to this same conviction in 8:03-cv-1230-T-23MSS was
rejected on the merits. Keno cannot pursue a “second or successive” application
without permission from the Eleventh Circuit Court of Appeals because 28 U.S.C.
§ 2244(b)(3)(A) proscribes that “[b]efore 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.” Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d
440, 442 (11th Cir. 1999). Keno ignores his earlier application. Until he obtains
authorization for 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
Keno 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
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made a substantial showing of the denial of a constitutional right.” To merit a COA,
Keno 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, Keno 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. Keno must obtain authorization from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 20, 2017.

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