United States District Court, M.D. Florida, Tampa Division
CARMEN A. ZAMMIELLO, Applicant,
SECRETARY, Department of Corrections, Respondent.
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
applies under 28 U.S.C. § 2254 for the writ of habeas
corpus (Doc. 1) and challenges the validity of his state
convictions for burglary, for which he is imprisoned for
thirty years as a habitual felony offender and a prison
releasee re-offender. Rule 4, Rules Governing Section 2254
Cases, requires both a preliminary review of the application
for the writ of habeas corpus and a summary dismissal
“[i]f it plainly appears from the face of the
[application] and any exhibits annexed to it that the
[applicant] is not entitled to relief in the district court .
. . .” Zammiello is barred from pursuing this
“second or successive” application.
earlier challenge to this same conviction in
8:13-cv-2285-T-30TGW was dismissed as time-barred. Both the
district court and the circuit court declined to issue a
certificate of appealability. (Doc. 28 and 32) Zammiello
cannot pursue a “second or successive”
application without permission from the Eleventh Circuit
Court of Appeals because 28 U.S.C. § 2244(b)(3)(A)
proscribes that “[b]efore 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.” See Felker v.
Turpin, 518 U.S. 651, 664 (1996); Patterson v.
Sec'y, Fla. Dep't of Corrs., 849 F.3d 1321,
1324-25 (2017) (“After a state prisoner has had a
trial, a direct appeal, and an opportunity for collateral
review in the state courts, he typically gets one, and only
one, chance to collaterally attack his conviction in federal
court. With exceptions not relevant here, section 2244(b)
prohibits a state prisoner from filing a ‘second or
successive' habeas petition.”).
determination that the earlier application was time-barred
precludes Zammiello from again challenging either his
conviction or his sentence without first obtaining
authorization from the circuit court, as Candelario v.
Warden, 592 Fed.Appx. 784, 785 n.1 (11th Cir. 2014),
cert. denied sub nom. Candelario v. Wilson, 135
S.Ct. 2367 (2015), explains:
[A] second petition is successive if the first was denied or
dismissed with prejudice, Guenther v. Holt, 173 F.3d
1328, 1329 (11th Cir. 1999) (discussing § 2254), and a
dismissal for untimeliness is with prejudice, see Jordan
v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1353
(11th Cir. 2007) (same). Accord Villanueva v. United
States, 346 F.3d 55, 61 (2d Cir. 2003) (“[W]e hold
that a habeas or § 2255 petition that is properly
dismissed as time-barred under AEDPA constitutes an
adjudication on the merits for successive purposes.”).
knows that he cannot again challenge his conviction without
authorization from the circuit court because he was so
advised in 8:15-cv-1747-T-35JSS, 8:15-cv-2127-T-33AEP, and
8:16-cv-2542-T-36JSS. Additionally, in 8:15-mc-56-T-EAK, the
circuit court declined Zammiello's request for leave to
file a second or success action.
exhibits attached to the present application show both that
Zammiello recently attempted another post-conviction
challenge and that the state court warned Zammiello about the
possibility of imposing sanctions if he persists with another
non-meritorious challenge to his conviction. (Exhibit A, Doc.
1 at 30-31) Likewise, Zammiello is cautioned that, when
deemed necessary, a federal court may exercise the inherent
judicial authority to sanction an abusive litigant. See,
e.g., Martin v. District of Columbia Court of Appeals,
506 U.S. 1 (1992); Chambers v. NASCO, Inc., 501 U.S.
32 (1991); In re Sindram, 498 U.S. 177 (1991);
In re McDonald, 489 U.S. 180 (1989). See also
Martin-Trigona v. Shaw, 986 F.2d 1384, 1386-87 (11th
Cir. 1993) (“[F]ederal courts have both the inherent
power and the constitutional obligation to protect their
jurisdiction from conduct which impairs their ability to
carry out Article III functions.”). Abuse includes the
repetitious filing of a frivolous action because
“[e]very paper filed with the Clerk of this Court, no
matter how repetitious or frivolous, requires some portion of
the institution's limited resources. A part of the
Court's responsibility is to see that these resources are
allocated in a way that promotes the interests of
justice.” In re McDonald, 489 U.S. at 184.
Before imposing a sanction, a court must provide the party
both notice and an opportunity to respond, as In re
Mroz, 65 F.3d 1567, 1575-76 (1995), explains:
Invocation of a court's inherent power requires a finding
of bad faith. Chambers, 501 U.S. at 49, 111 S.Ct. at
2135, 115 L.Ed.2d at 48. The court must afford the sanctioned
party due process, both in determining that the requisite bad
faith exists and in assessing fees. Id. Due process
requires that the attorney (or party) be given fair notice
that his conduct may warrant sanctions and the reasons why.
Donaldson v. Clark, 819 F.2d 1551, 1559-60 (11th
Cir. 1987) (discussing Rule 11 sanctions). Notice can come
from the party seeking sanctions, from the court, or from
both. Id. at 1560. In addition, the accused must be
given an opportunity to respond, orally or in writing, to the
invocation of such sanctions and to justify his actions.
must cease attempting to pursue this time-barred action
unless he first obtains authorization from the circuit court.
If he commences another action, Zammiello's persistence
might result in sanctions, which may include a referral to
the Florida Department of Corrections for the imposition of a
penalty under the Department's disciplinary procedures.
“A prisoner who is found by a court to have brought a
frivolous or malicious suit, action, claim, proceeding, or
appeal in any court of this state or in any federal court . .
. is subject to disciplinary procedures pursuant to the rules
of the Department of Corrections.” Section 944.279,
Fla. Stat. The district court is not imposing a sanction at
an applicant cannot appeal a district court's denial of
relief under Section 2254 unless either the district court or
the circuit court issues a certificate of appealability
(“COA”). However, as Williams v.
Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007), explains,
a COA cannot issue in this action because the district court
cannot entertain the application to review the second or
Because he was attempting to relitigate previous claims that
challenge the validity of his conviction, Williams was
required to move this Court for an order authorizing the
district court to consider a successive habeas petition.
See 28 U.S.C. § 2244(b)(3)(A). Without such
authorization, the district court lacked subject matter
jurisdiction to consider the successive petition, and
therefore could not issue a COA with respect to any of these
Accord Burton v. Stewart, 549 U.S. 147, 157 (2007)
(“Burton neither sought nor received authorization from
the Court of Appeals before filing his 2002 petition, a
‘second or successive' petition challenging his
custody, and so the District Court was without jurisdiction
to entertain it.”). See also United States v.
Robinson, 579 Fed.Appx. 739, 741 n.1 (11th Cir. 2014)*
(applying Williams in determining that the district
court lacked jurisdiction because the motion to alter or
amend a judgment under Rule 60(b), Federal Rules of Civil
Procedure, was actually an impermissible second or successive
motion under Section 2255 and, as a consequence, “a COA
was not required to appeal the denial of the motion”).
the application for the writ of habeas corpus (Doc. 1) is
DISMISSED as second or successive without
authorization from the circuit court. The motion for leave to
proceed in forma pauperis (Doc. 2) is DENIED
AS MOOT. The clerk must close this case. Further,
Zammiello is warned about the possibility of imposing
sanctions if he persists in filing an ...