GREEN v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS

Filing 6

ORDER directing Petitioner to file Second Amended Petition re 5 Amended Petition for Writ of Habeas Corpus filed by DANNY ALLEN GREEN - Amended Pleadings due by 3/11/2013; signed by MAGISTRATE JUDGE GARY R JONES on 2/8/13 (clerk mailed blank petition and motion for ifp) (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DANNY ALLEN GREEN,
Petitioner,
v.

CASE NO. 1:13-cv-18-MP -GRJ

SECRETARY, DEPT.
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
This matter is before the Court on Doc. 5, Petitioner’s amended petition for a writ
of habeas corpus. The Court previously ordered Petitioner to amend his petition on the
Court’s forms. (Doc. 3.) However, in amending his petition, Petitioner failed to comply
with the Court’s directive and instead completed the first page of the form and then
omitted the remaining pages he deemed “superfluous info” and signed the final page.
(Doc. 5.) As an initial matter, Petitioner, who is an experienced litigator in that he has
previously filed at least five actions in this District, has failed to comply with the Court’s
previous Order. However, in an abundance of caution, Petitioner will be permitted
another opportunity to amend his petition. However, in amending his petition, Petitioner
must follow the directions on the Court’s form and complete the form in its entirety. He
is also advised of the following:
To the extent Petitioner is attempting to challenge his Alachua County
convictions for two counts of attempted sexual battery and one count of sexual

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performance by a child, the instant petition would be successive.1 In order to file a
second or successive § 2254 petition, the Petitioner must first obtain an order from the
court of appeals authorizing the district court to consider it. 28 U.S.C. § 2244(b)(3)(A).
Absent authorization, the district court lacks jurisdiction to consider a second or
successive petition. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)
(addressing a successive motion to vacate under 28 U.S.C. § 2255). Petitioner was
sentenced on November 10, 2005 to 102.525 months in prison, with credit for 16 days
of jail time served. Since his sentencing date, approximately 87 months has passed.
This is at odds with Petitioner’s assertion that he has been in “some form of custody” for
103 months. To the extent he challenges the amount of credit given for time served (16
days versus 492 days), this would be an attack on his original conviction and sentence
and cannot be entertained in a successive petition absent authorization from the
Eleventh Circuit Court of Appeals.
To the extent Petitioner is challenging the loss of 364 days of gain time in
connection with a prison disciplinary conviction for filing a frivolous habeas petitioner,
which he contends violated his due process rights, such an action would be properly
brought under § 2254. In amending his petition, he should focus on this disciplinary
conviction as the “judgment of conviction” he is challenging. The loss of gain time and
the hearing associated with it is at issue, not Petitioner’s original sentence. For

1

Green v. McNeil, Case No. 1:09-cv-204-MP-GRJ (denied on the m erits); Green v. Pippin, Case
No. 3:11-cv-457-MCR-CJK (denied as successive); Green v. Tucker, Case No. 1:12-cv-199-SPM-GRJ
(denied as successive).

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example, “date of sentencing” would be the date the gain time was revoked.
Petitioner anticipates that a successful habeas petition would result in restoration
of gain time such that he would be entitled to immediate release. Petitioner’s current
release date is listed on the FDOC website as May 19, 2013, which, if accurate, will
result in him serving approximately 91 months (or approximately 89%) of the 102.525
month sentence. The Court will consider ordering an expedited response from the
Respondent, but this can only be effected if the Petitioner complies with this Court’s
directive and fully completes the form with all pertinent information.
Accordingly, it is ORDERED:
1. The Clerk shall send Petitioner a blank 28 U.S.C § 2254 petition form for state
prisoners and an application for leave to proceed as a pauper.
2. Petitioner shall file his original Second Amended Petition, together with two
identical service copies, on or before March 11, 2013. Failure to comply with
this Order within the allotted time will result in a recommendation to the District
Judge that this case be dismissed without further notice.2
DONE AND ORDERED this 8th day of February 2013.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

2

Petitioner should note that if he fails to respond to this Order and this case is dism issed, any
subsequently-filed habeas petition in this Court challenging the sam e conviction m ay be barred by the
one-year lim itation period for filing a habeas petition in the federal courts. See 28 U.S.C. § 2244(d)(1).
Although the one-year period is tolled during the tim e in which a properly filed application for state postconviction relief is pending, see 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 tim e in which a federal habeas petition is pending does
not toll the one-year lim itation period. See Duncan v. W alker, 533 U.S. 167 (2001) (holding that an
application for federal habeas corpus review does not toll the one-year lim itation period under §
2244(d)(2)).