CAMPBELL v. SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 7 Report and Recommendations. The Petition for Writ of Habeas Corpus (ECF No. 1 ) is dismissed without prejudice, to be re-filed if the Eleventh Circuit Court of Appeals grants Campbell's applicat ion for leave to file a successive habeas corpus petition. The Court denies Campbell's motion challenging the Court's subject matter jurisdiction (ECF No. 11 ) and denies Campbell's motion for certificate of appealability (ECF No. DE 13 ). All other pending motions are denied as moot. The Court directs the Clerk to close this case. Signed by Judge Robert N. Scola, Jr on 4/12/2017. (mc) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
James Bernard Campbell,
Petitioner

)
)
)
v.
)
Secretary of Florida Department )
of Corrections,
)
Respondent.

Civil Action No. 17-20406-Civ-Scola

Order Adopting Magistrate Judge’s Report And Recommendation
This case was referred to United States Magistrate Judge Patrick A.
White, consistent with Administrative Order 2003-19 of this Court, for a ruling
on all pre-trial, nondispositive matters and for a report and recommendation
on any dispositive matters. Judge White’s Report concludes that this matter
should be dismissed as a successive habeas corpus petition, filed without first
obtaining authorization from the Eleventh Circuit Court of Appeals, as required
by 28 U.S.C. § 2244(b)(3). (Report of Magistrate, ECF No. 7.) The Petitioner
James Bernard Campbell filed a motion challenging this Court’s jurisdiction
(ECF No. 11), which the Court will construe as objections, and separately filed
objections (ECF No. 12).
The Court has made a de novo review of the record. Campbell filed a 170page petition seeking review of his conviction and sentence for first degree
murder, attempted first degree murder, robbery with a deadly weapon, armed
burglary of a dwelling, and possession of a weapon during the commission of a
criminal offense. (Pet., ECF No. 1.) Campbell first sought federal review of these
same convictions in 1998, pursuant to 28 U.S.C. § 2254.1 (Pet., Case No. 98cv-02088-DLG, ECF No. 1.) After lengthy proceedings, the Court denied
Campbell’s petition on the merits. (Report and Order, Case No. 98-cv-02088DLG, ECF Nos. 172, 180.)
Now, Campbell raises repetitive and meritless objections. First, Campbell
claims that this Court does not have jurisdiction to determine that his second
petition is successive. (Mot. at 4, ECF No. 11.) This objection, aside from
lacking any legal support, belies Campbell’s express invocation of this Court’s
jurisdiction in the present petition. (Pet. at 1, ECF No. 1.)
Next, Campbell appears to argue that the present petition is not
successive because it raises a separate constitutional issue not raised in
In fact, Campbell continues to litigate that case, having filed the most recent motion in the
1998 case on April 4, 2017.
1

Campbell’s first petition and because the first petition was not adjudicated on
the merits. (See, e.g., Objs. at 5, 7, 16, 21, ECF No. 12.) But Campbell ignores
that whether raising new or previously argued claims he cannot file a
successive petition until he obtains authorization from the Eleventh Circuit. 28
U.S.C. § 2244(b)(3)(A) (“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.”). The record unequivocally shows that the Court
denied Campbell’s first petition on the merits and that Campbell failed to seek
and failed to obtain the required authorization.
Thus, having considered Judge White’s Report, Campbell’s Objections,
and the relevant legal authorities, as well as having made a de novo review of
the record, the Court finds Judge White’s Report and Recommendation cogent
and compelling. The Court affirms and adopts Judge White’s Report and
Recommendation (ECF No. 7). The Petition for Writ of Habeas Corpus (ECF No.
1) is dismissed without prejudice, to be re-filed if the Eleventh Circuit Court
of Appeals grants Campbell’s application for leave to file a successive habeas
corpus petition.
Further, the Court denies Campbell’s motion challenging the Court’s
subject matter jurisdiction (ECF No. 11) and denies Campbell’s motion for
certificate of appealability (ECF No. 13). All other pending motions are denied
as moot. Finally, the Court directs the Clerk to close this case.
Done and ordered, at Miami, Florida, on April 12, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge