MACK v. CARR
ORDER OF DISMISSAL. The Court therefore DISMISSES the petition without prejudice to Petitioner's right to file in the Eleventh Circuit a motion for leave to file a second or successive habeas petition pursuant to § 2244(b)(3). The Court also DIRECTS the Clerk to furnish Petitioner with the application form required by the Eleventh Circuit. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 11/15/2023. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ORDER OF DISMISSAL
Petitioner Steve Mack, a prisoner in the Riverbend Correctional Facility in
Milledgeville, Georgia, has filed a petition for a writ of habeas corpus challenging his
January 2008 conviction in the Houston County Superior Court. Recast Pet., ECF No. 9.
Petitioner has also paid the $5.00 filing fee for this case.
Petitioner, however, has challenged this same conviction through a previous federal
habeas corpus petition, which this Court dismissed. See Order Adopting R. & R., Mack
v. Medlin, Case No. 5:14-cv-00322-MTT-CHW (M.D. Ga March 10, 2016), ECF No. 29.
“Before a second or successive application [for a writ of habeas corpus] 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.” 28 U.S.C. § 2244(b)(3)(A); see
also Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), cert. denied, 528 U.S. 1085
The instant petition is successive within the meaning of § 2244(b). Moreover, it
does not appear, and Petitioner does not allege, that a three-judge panel of the Eleventh
Circuit Court of Appeals has authorized this Court to consider a successive habeas petition
for his 2008 conviction. Without such an order, this Court lacks jurisdiction to consider
the successive claims. See § 2244(b)(3)(A); Gilreath v. State Bd. of Pardons & Paroles,
273 F.3d 932, 933-34 (11th Cir. 2001) (per curiam).
The Court therefore DISMISSES the petition without prejudice to Petitioner’s right
to file in the Eleventh Circuit a motion for leave to file a second or successive habeas
petition pursuant to § 2244(b)(3).
The Court also DIRECTS the Clerk to furnish
Petitioner with the application form required by the Eleventh Circuit. 1
SO ORDERED and DIRECTED, this 15th day of November, 2023.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
“[A] dismissal of a successive habeas petition for lack of subject-matter jurisdiction does not constitute
a ‘final order in a habeas proceeding’ for purposes of 28 U.S.C. § 2253(c). . . . Instead, such a dismissal
is a ‘final decision’ pursuant to 28 U.S.C. § 1291 and a [Certificate of Appealability] is thus ‘unnecessary.
. . .’” Bolin v. Sec’y, Fla. Dep’t of Corr., 628 F. App’x 728, 730 (11th Cir. 2016) (per curiam) (quoting
Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (affirming dismissal of successive habeas
petition for lack of subject-matter jurisdiction)). Accordingly, the Court will not address whether
Petitioner has met the standards for issuance of a Certificate of Appealability.
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