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McClain v. Secretary, Department of Corrections

United States District Court, N.D. Florida, Tallahassee Division

March 19, 2018

NATHANIEL C. MCCLAIN, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES United States Magistrate Judge

         Petitioner initiated this case by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the sentence imposed from his 1976 state court conviction for second degree murder, use of a firearm during the commission of a felony, and aggravated assault. (ECF No. 1.) Although Petitioner filed his petition on a § 2241 petition, his request was for the type of relief afforded by 28 U.S.C. § 2254, which provides,

[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

         “A federal court may recharacterize a pro se litigant's motion to create a better correspondence between the substance of the motion and its underlying legal basis.” Rameses v. United States Dist. Court, 523 Fed.Appx. 691, 695 (11th Cir. 2013) (citing Castro v. United States, 540 U.S. 375, 381-82 (2003)). Accordingly, the Court recharacterized his petition as one under § 2254 because there was no question that Petitioner is in custody pursuant to the judgment of a state court. (ECF No. 5.)

         A review of PACER, however, revealed that Petitioner previously filed a § 2254 petition challenging the same conviction.[1] That petition was dismissed as untimely on June 12, 2015, and a certificate of appealability was denied.

         In order to file a second or successive § 2254 petition, however, a 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); see also Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007) (requiring petitioner to obtain order from appellate court prior to filing second or successive § 2254 petition after first habeas petition was dismissed as untimely). 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). The Court therefore ordered Petitioner to show that he has obtained an order from the Eleventh Circuit authorizing this Court to consider his petition. (ECF No. 5.)

         Petitioner subsequently filed an amended petition pursuant to § 2241 on July 27, 2016. (ECF No. 6.) The amended petition, however, merely amended the grounds and supporting facts. (ECF No. 7.) The amended petition presents the following three grounds for relief: (1) Petitioner's 10-year consecutive sentence imposed for his use of a firearm conviction is illegal because it exceeds the statutory maximum sentence authorized by law and should, therefore, be vacated; (2) Petitioner's 3-year minimum mandatory sentences imposed consecutively for each of his convictions in counts three, four, and five, are illegal because they exceed the statutory maximum authorized by law and should, therefore, be vacated; and (3) Petitioner's 3-year minimum mandatory sentences that he received for counts one, three, four, and five pursuant to Florida's minimum mandatory sentencing provision are illegal and should, therefore, be vacated. (Id.)

         Petitioner also filed a response to the Court's order to show cause, in which he argued he should be given an opportunity to amend his § 2241 petition instead of having the Court treat it as a successive § 2254 petition. (ECF No. 6.) He asserted that because his Petition challenges the state court's execution of his sentence, that it is properly characterized as one under § 2241. (Id.)

         The Court subsequently explained that although Petitioner asserts he may challenge his sentence via § 2241, he is misguided. (ECF No. 9.)

A state prisoner seeking post-conviction relief from a federal court has but one remedy: an application for a writ of habeas corpus. All applications for writs of habeas corpus are governed by § 2241, which generally authorizes federal courts to grant the writ-to both federal and state prisoner. Most state prisoners' applications for writs of habeas corpus are subject also to the additional restrictions of § 2254. That is, if a state prisoner is “in custody pursuant to the judgment of a State court, ” his petition is subject to § 2254. If, however, a prisoner is in prison pursuant to something other than a judgment of a state court, e.g., a pre-trial bond order, then his petition is not subject to § 2254.

Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003). Where, as here, a petitioner is challenging the validity of a sentence and the petitioner is a state prisoner in custody pursuant to the judgment of a state court, the proper avenue for relief is § 2254. Cook v. Baker, 139 Fed.Appx. 167, 169 (11th Cir. 2005); Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004); cf. Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (“By contrast, the general grant of habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment-for example, a defendant in pre-trial detention or awaiting extradition.”).

         The Court further explained that because Petitioner is a state prisoner challenging the validity of his sentence, the only avenue for relief is § 2254. (ECF No. 9.) But, Petitioner already sought relief via § 2254 for the same conviction. The Court, therefore, provided one final opportunity for Petitioner to show that he has obtained an order from the Eleventh Circuit authorizing this Court to consider his petition. (Id.)

         Petitioner has responded, arguing that he does not need authorization from the Eleventh Circuit. He asserts that because his first § 2254 petition was dismissed as untimely, there was no judgment on the merits of his claims. (ECF No. 10.) He also argues that his amended petition is timely before this Court. (Id.)

         Despite Petitioner's assertion, the dismissal of his first § 2254 petition as untimely constitutes an adjudication on the merits for the purposes of invoking the second or successive petition requirements of § 2244(b)(3). See Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007) (requiring petitioner to obtain an order from the appellate court prior to filing a second or successive § 2254 petitioner after the first § 2254 petition was dismissed as untimely); Murray v. Grenier, 394 F.3d 78, 81 (2d Cir. 2005) (“[D]ismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjuidcation on the merits that renders future petitions under § 2254 challenging the save conviction ‘second or successive' petitions under § 2244(b).”); Altman v. Benik, 337 F.3d 764, ...


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