Heuss v. Crews
ORDER adopting 7 Magistrate Judge's Report and Recommendation; overruling 10 Petitioner's Objections; dismissing 1 Application/Petition (Complaint) for Writ of Habeas Corpus filed by James Robert Heuss. The case is CLOSED. Signed by Judge James I. Cohn on 1/27/2014. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62720-CIV-COHN/WHITE
JAMES ROBERT HEUSS,
MICHAEL D. CREWS, Secretary,
Florida Department of Corrections,
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE
THIS CAUSE is before the Court upon the Report and Recommendation [DE 7]
(“Report”) of Magistrate Judge Patrick A. White concerning Petitioner James Robert
Heuss’s pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody [DE 1] (“Petition”). Heuss has filed timely Objections [DE 10] to the
Report. The Court has reviewed de novo the file herein and is otherwise fully advised
in the premises.
Heuss’s Petition challenges his state-court convictions and sentences for two
counts of sexual battery upon a child and one count of indecent assault on a child.
In the Report, Magistrate Judge White noted that Heuss had previously filed another
federal habeas petition regarding the same convictions and sentences. See Heuss v.
Moore, Case No. 01-cv-05175-UU (S.D. Fla. filed Dec. 28, 2001). Judge Ungaro
dismissed that petition in January 2003; after granting a certificate of appealability on
one of Heuss’s claims, the Eleventh Circuit affirmed. See id., DE 30, 41, 43.
In view of Heuss’s earlier petition, Magistrate Judge White determined that the
instant Petition is second or successive. See 28 U.S.C. § 2244(b). Further, Judge
White noted that Heuss had not obtained an order from the Eleventh Circuit authorizing
this Court to consider his second or successive habeas corpus petition. See 28 U.S.C.
§ 2244(b)(3)(A). Judge White thus recommended that the Court dismiss the Petition.
See Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007) (per curiam)
(explaining that, without authorization from the court of appeals, a district court lacks
subject-matter jurisdiction to consider a successive habeas petition).1 Judge White
advised Heuss that if he “intends to pursue this case, he should forthwith apply to the
United States Eleventh Circuit Court of Appeals for the authorization required by
28 U.S.C. § 2244(b)(3)(A).” DE 7 at 3; see DE 7-1 (attached application form).
After a careful review, this Court agrees with Magistrate Judge White’s
reasoning, conclusions, and recommendations. More, the Court has considered
Heuss’s Objections and finds them to be without merit. Heuss argues that the Court
may review the judgment in his state post-conviction proceedings because a procedural
error rendered that judgment “void.” This argument, however, relies largely on Federal
Rule of Civil Procedure 60(b)(4), which allows relief from a void judgment or order
entered by the federal court. See Fed. R. Civ. P. 60(b)(4); see also Williams,
510 F.3d at 1293-94 (distinguishing Rule 60(b) motions that contest federal court’s
ruling on merits of habeas claim from Rule 60(b) motions that assert procedural defects
Because Heuss’s Petition appeared to be barred by the one-year limitations
period of 28 U.S.C. § 2244(d), Judge White declined to recommend transferring this
case to the Eleventh Circuit or staying the action. See Guenther v. Holt, 173 F.3d 1328,
1331-32 (11th Cir. 1999).
in federal habeas case). Rule 60(b) does not apply to Heuss’s claim that the Florida
courts’ judgment is void. And that claim remains subject to the normal limitations on
second or successive habeas petitions. The Court therefore must dismiss the Petition
for lack of jurisdiction. See 28 U.S.C. § 2244(b)(3)(A); Williams, 510 F.3d at 1293-94.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
The Magistrate Judge’s Report and Recommendation [DE 7] is ADOPTED;
Petitioner’s Objections [DE 10] are OVERRULED;
The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody [DE 1] is DISMISSED for lack of jurisdiction. As explained in the
Magistrate Judge’s Report, Petitioner may seek authorization from the Eleventh
Circuit to file a second or successive habeas petition; and
The Clerk shall CLOSE this case and DENY AS MOOT all pending motions.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 27th day of January, 2014.
Copies provided to:
Magistrate Judge Patrick A. White
Counsel of record
James Robert Heuss, pro se
Century Correctional Institution
400 Tedder Road
Century, FL 32535
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?