Minnis v. Secretary, Department of Corrections et al

Filing 3

OPINION AND ORDER dismissing the application for the writ of habeas corpus; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 9/29/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HERBERT MINNIS,
Applicant,
v.

CASE NO. 8:17-cv-2109-T-23TGW

SECRETARY, Department of Corrections,
Respondent.
/

ORDER
Minnis applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges the validity of his state conviction for armed home invasion robbery,
for which he is imprisoned for life. 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 . . . .” Minnis is barred from pursuing this “second or successive” application.
Minnis’s earlier challenge to this same conviction in 8:13-cv-2953-T-17TGW
was rejected as time-barred. Minnis 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.” See Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary,
168 F.3d 440, 442 (11th Cir. 1999).
The determination that the earlier application was time-barred precludes
Minnis from again challenging either his conviction or his sentence without first
obtaining authorization from the circuit court, as Candelario v. Warden, 592 Fed.
App’x 784, 785 n.1 (11th Cir. 2014), cert. denied sub nom. Candelario v. Wilson,
135 S. Ct. 2367 (2015), explains:
[A] second petition is successive if the first was denied or
dismissed with prejudice, Guenther v. Holt, 173 F.3d 1328,
1329 (11th Cir. 1999) (discussing § 2254), and a dismissal for
untimeliness is with prejudice, see Jordan v. Sec’y, Dep’t of Corr.,
485 F.3d 1351, 1353 (11th Cir. 2007) (same). Accord Villanueva
v. United States, 346 F.3d 55, 61 (2d Cir. 2003) (“[W]e hold that
a habeas or § 2255 petition that is properly dismissed as timebarred under AEDPA constitutes an adjudication on the merits
for successive purposes.”).

Generally, an applicant cannot appeal a district court’s denial of relief under
Section 2254 unless either the district court or the circuit court issues a certificate of
appealability (“COA”). However, as Williams v. Chatman, 510 F.3d 1290, 1295
(11th Cir. 2007), explains, a COA cannot issue in this action because the district
court cannot entertain the application to review the second or successive application:
Because he was attempting to relitigate previous claims
that challenge the validity of his conviction, Williams was
required to move this Court for an order authorizing the district
court to consider a successive habeas petition. See 28 U.S.C.
§ 2244(b)(3)(A). Without such authorization, the district court
lacked subject matter jurisdiction to consider the successive
petition, and therefore could not issue a COA with respect to
any of these claims.
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Accord 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.”). See also United States v. Robinson, 579 Fed.
App’x 739, 741 n.1 (11th Cir. 2014)* (applying Williams in determining that the
district court lacked jurisdiction because the motion to alter or amend a judgment
under Rule 60(b), Federal Rules of Civil Procedure, was actually an impermissible
second or successive motion under Section 2255 and, as a consequence, “a COA was
not required to appeal the denial of the motion”).
Accordingly, the application for the writ of habeas corpus (Doc. 1) is
DISMISSED. The clerk must close this case.
ORDERED in Tampa, Florida, on September 29, 2017.

*

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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