from the United States District Court No. 1:16-cv-20059-KMW
for the Southern District of Florida
ED CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS,
CARNES, CHIEF JUDGE.
case involves the effect of a Castro error in an
earlier federal habeas proceeding on whether a later habeas
petition is to be treated as second or successive for
purposes of 28 U.S.C. § 2244(b). See Castro v.
United States, 540 U.S. 375, 124 S.Ct. 786 (2003).
FACTS AND PROCEDURAL HISTORY
Ponton was charged in 1982 in Florida state court in three
separate criminal cases on a total of 12 counts of robbery, 3
counts of armed robbery, 1 count of aggravated assault with a
firearm, and 3 counts of aggravated battery. Juries found him
guilty on nearly all of those counts, and he was sentenced to
65 years imprisonment in the first case, 730 years in the
second, and 402 years in the third. The state appellate court
affirmed his convictions and, with one minor exception not
relevant here, affirmed his sentences in all three cases.
See Ponton v. State, 436 So.2d 117 (Table) (Fla. 3d
DCA 1983); Ponton v. State, 436 So.2d 364 (Fla. 3d
DCA 1983); Ponton v. State, 434 So.2d 347 (Fla. 3d
those convictions became final, Ponton launched a barrage of
pro se post-conviction pleadings in state and
federal court. He has filed at least 40 post-conviction
motions and petitions in state court alone. See Ponton v.
State, 155 So.3d 425, 425 (Fla. 2014). Beginning in
1984, he filed his first of over a dozen pro se
pleadings in federal district court. His first four federal
pleadings - a mixed habeas corpus petition and civil rights
action filed in 1984, a civil rights action filed that same
year, a 28 U.S.C. § 2254 petition filed in 1986, and
another civil rights action filed in 1986 - were all
dismissed without prejudice.
fifth federal pleading, which he filed in 1988, is the one
that matters in this case. He alleged that the judge and
other individuals involved in his trials conspired against
him so that he could not assist in his own defense and that
his attorneys provided ineffective assistance of counsel. The
district court dismissed his complaint as a mixed § 2254
petition containing exhausted and unexhausted habeas
claims. Ponton appealed, and we reversed because
it appeared that he may have exhausted all of his claims.
Ponton v. Morphonios, No. 88-5534 (11th Cir. Mar.
24, 1989) (unpublished).
remand the State conceded that he had exhausted his
ineffective assistance claim. Ponton withdrew his other
claims, asked the district court to proceed on his
ineffective assistance claim, and filed an amended complaint.
The docket sheet indicated his amended complaint had been
classified as a petition for a writ of habeas corpus. Nothing
in the record indicates that the court notified him of that
recharacterization or warned him that it could limit future
federal habeas filings. The court dismissed his petition on
the merits, Ponton appealed, and we affirmed. Ponton v.
Morphonios, No. 90-5592 (11th Cir. June 28, 1991)
that 1988 filing, Ponton filed three § 2254 petitions in
1992. Those petitions were dismissed as successive because
his 1988 petition had been denied on the merits. After a
twelve-year hiatus, he filed three more § 2254 petitions
in 2004, 2009, and 2013. They were dismissed as unauthorized
second or successive petitions because he did not receive
permission from this Court to file them. See 28
U.S.C. § 2244(b)(3)(A) ("Before 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
also In re Bradford, 830 F.3d 1273, 1277 (11th Cir.
2016) ("[W]hen a petitioner fails to seek permission
from the court of appeals to file a second or successive
petition, the district court lacks jurisdiction to consider
Ponton filed yet another § 2254 petition in 2016. Before
the State filed its response, the district court - once again
- dismissed that petition as an unauthorized second or
successive petition because Ponton failed to obtain
permission from this Court to file it. This is his
STANDARD OF REVIEW
review de novo whether a petition for a writ of
habeas corpus is second or successive." Patterson v.
Sec'y, Fla. Dep't of Corr., 849 F.3d ...