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Ponton v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

June 4, 2018

ALFONSO PONTON, Petitioner-Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

          Appeal from the United States District Court No. 1:16-cv-20059-KMW for the Southern District of Florida

          Before ED CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, [*] District Judge.

          ED CARNES, CHIEF JUDGE.

         This 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).

         I. FACTS AND PROCEDURAL HISTORY

         Alfonso 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 DCA 1983).

         After 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.

         Ponton's 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.[1] 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).

         On 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) (unpublished).

         After 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 it.").

         Undeterred, 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 appeal.[2]

         II. STANDARD OF REVIEW

         "We 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 ...


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