Adolfson, David v. Florida Department of Corrections

Filing 7

ORDER SUA SPONTE DISMISSING 28 U.S.C. 2254 PETITION AS SUCCESSIVE. CLOSING CASE. No certificate of appealability shall issue because the Court lacks jurisdiction to issue one. Signed by Judge Beth Bloom on 6/4/2024. See attached document for full details. (caw) (Additional attachment(s) added per chambers on 6/11/2024: #1 Exhibit Petition) (mf).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-cv-14154-BLOOM
DAVID ADOLFSON,

v.

Petitioner,

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_________________________________/
ORDER SUA SPONTE DISMISSING 28 U.S.C. § 2254 PETITION AS SUCCESSIVE
THIS CAUSE is before the Court upon pro se Petitioner David Adolfson’s (“Petitioner”)
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, ECF No. [1], (the “Petition”).
Petitioner is a state prisoner incarcerated at the South Florida Reception Center-South Unit in
Doral, Florida. He challenges his conviction and life sentence for attempted first-degree murder in
the Nineteenth Judicial Circuit in and for Martin County, Florida. See Florida v. Adolfson, No. 05CF-1642-A (Fla. 19th Cir. Ct. Mar. 4, 2007). 1 This is Petitioner’s second federal habeas petition
challenging the same conviction and sentence. See Adolfson v. Florida, No. 12-CV-14355-JEM
(S.D. Fla. Oct. 31, 2014). 2 Accordingly, the Petition is dismissed sua sponte as an unauthorized
successive petition pursuant to 28 U.S.C. § 2244(b).

Under Fed. R. Evid. 201, the Court takes judicial notice of the record in Petitioner’s state criminal
case. See Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 652 (11th Cir. 2020). Petitioner’s state court
record is available at https://court.martinclerk.com/Home.aspx/Search (search Case No. “2005001642CF”).
Pursuant to Paez, this Court has included with this Order a copy of the docket sheet in Petitioner’s state
criminal case. See id. at 653 (“We think the best practice would be to include copies of any judicially noticed
records as part of the Order that relies upon them, so as to ensure the inmate receives them.”).
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A federal district court may take judicial notice of its own records. See United States v. Rey, 811
F.2d 1453, 1457 n.5 (11th Cir. 1987).
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Case No. 24-cv-14154-BLOOM
I. BACKGROUND
On February 1, 2007, Petitioner was found guilty by a jury of attempted first-degree murder
with a weapon. Adolfson, No. 05-CF-1642-A, Docket No. 921. On March 7, 2007, Petitioner was
sentenced to life imprisonment as a habitual violent felony offender (“HVFO”). Id., Docket No.
439. On October 4, 2012, Petitioner, through counsel, filed his first federal habeas petition, raising
three grounds challenging that conviction and sentence. Adolfson, No. 12-CV-14355-JEM, ECF
No. [1]. Petitioner then filed an amended petition. Id., ECF No. [41]. On October 30, 2014, the
Honorable Jose E. Martinez adopted the Report and Recommendation of United States Magistrate
Judge Frank J. Lynch and denied the petition on the merits. Id., ECF No [51]. Petitioner filed a
pro se appeal, which was dismissed for want of prosecution. Id., ECF Nos. [52, 56].
On May 18, 2024, Petitioner filed the instant pro se Petition, challenging the same
conviction and sentence he challenged in his prior petition. ECF No. [1]. Petitioner raises two
grounds: (1) his sentence is illegal because the 15-year mandatory portion of the HVFO
enhancement was neither orally pronounced nor reduced to writing in accordance with the statute;
and (2) aggravated stalking charges were improperly used to upgrade his status to habitual felony
offender. Id. No response has been ordered because it is clear from the face of the Petition that it
is an unauthorized second or successive petition.
II. LEGAL STANDARD
Rule 4(b) of the Rules Governing Section 2254 Cases in the United States District Courts
provides that, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk
to notify the petitioner.” Likewise, the United States Supreme Court has consistently held that
“[f]ederal courts are authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face[.]” McFarland v. Scott, 512 U.S. 849, 856 (1994) (alterations added)
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Case No. 24-cv-14154-BLOOM
(citation omitted). In reviewing a pro se petition under Rule 4, however, the district court must
construe it liberally. See Enriquez v. Fla. Parole Comm’n, 227 F. App’x 836, 837 (11th Cir. 2007)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) established
strict limits on a state prisoner’s ability to file a “second or successive” habeas petition. See Burton
v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(1)). Under the AEDPA,
“before a petitioner may file a second or successive [section] 2254 habeas petition, the petitioner
first must obtain an order from th[e] [Eleventh Circuit] authorizing the district court to consider
the petition.” Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 (11th Cir. 2020)
(alterations added) (citing 28 U.S.C. § 2244(b)(3)(A)). Without authorization from the Eleventh
Circuit, this Court lacks jurisdiction to consider a second or successive habeas petition. See §
2244(b)(3)(A); Wallace v. Att’y Gen. of Ala., 825 F. App’x 737, 738 (11th Cir. 2020) (citation
omitted).
The phrase “second or successive” is “not self-defining” and does not refer “to all § 2254
applications filed second or successively in time[.]” Panetti v. Quarterman, 551 U.S. 930, 944–45
(2007). “To determine whether an inmate’s petition is second or successive, [courts] look to
whether the petitioner filed a federal habeas petition challenging the same judgment.” Miles v.
Strickland, 774 F. App’x 590, 592 (11th Cir. 2019) (citing Insignares v. Sec’y, Fla. Dep’t of Corr.,
755 F.3d 1273, 1279 (11th Cir. 2014)). If the petitioner is challenging the same judgment he
challenged previously, then his second petition is second or successive if the first petition was
denied or dismissed with prejudice. See id. (citing Guenther v. Holt, 173 F.3d 1328, 1329 (11th
Cir. 1999)). A petition is not second or successive, however, “if it challenges a new judgment
issued after the prisoner filed his first petition.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d
1321, 1325 (11th Cir. 2017).
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Case No. 24-cv-14154-BLOOM
III. DISCUSSION
This Court lacks jurisdiction to consider the Petition under 28 U.S.C. § 2244(b)(3)(A).
Petitioner concedes that he previously filed a federal habeas petition in Case No. 12-cv-14355JEM, challenging the same judgment he challenges here. ECF No. [1] at 4. Petitioner incorrectly
states, however, that his petition in that case was “denied as moot.” Id. The record in that case
reveals that all three claims raised in the petition and in the amended petition were denied on the
merits. See Adolfson, No. 12-cv-14355-JEM, ECF Nos. [46], [51]. Petitioner does not allege that
he received a new judgment since his first petition was denied, and a review of his state court
record confirms that he has not. Therefore, the instant petition is successive. See Miles, 774 F.
App’x at 592. Moreover, Petitioner does not allege that he has received authorization from the
Eleventh Circuit to file a second petition, and a review of the Eleventh Circuit’s CM/ECF database
reveals that he has not. As authorization has not been granted, this Court lacks jurisdiction to
consider the instant Petition. See § 2244(b)(3)(A); Burton, 549 U.S. at 153.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that:
1. The Petition, ECF No. [1], is DISMISSED as successive.
2. No certificate of appealability shall issue because the Court lacks jurisdiction to issue
one. Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007). However, a certificate
of appealability is unnecessary to permit the Eleventh Circuit to review the Court’s
order of dismissal. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004).
3. The Clerk is DIRECTED to CLOSE this case any DENY all pending motions as
MOOT.

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Case No. 24-cv-14154-BLOOM
DONE AND ORDERED in Chambers at Miami, Florida, on June 4, 2024.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
David Adolfson, PRO SE
856391
South Florida Reception Center-South Unit
Inmate Mail/Parcels
13910 NW 41st Street
Doral, FL 33178

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