United States District Court, N.D. Florida, Tallahassee Division
NATHANIEL C. MCCLAIN, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
REPORT AND RECOMMENDATION
R. JONES United States Magistrate Judge
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.
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.)
review of PACER, however, revealed that Petitioner previously
filed a § 2254 petition challenging the same
conviction. That petition was dismissed as untimely on
June 12, 2015, and a certificate of appealability was denied.
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.)
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.)
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.)
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.”).
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.)
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.
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, ...