United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
amended application under 28 U.S.C. § 2254 for the writ
of habeas corpus (Doc. 4) challenges the validity of his
state conviction for two counts of sexual battery involving a
victim under twelve and one count of lewd and lascivious
molestation involving a victim under twelve, for which he is
imprisoned for life. Williams is barred from proceeding with
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 . . . .” The preliminary review shows
that the application is untimely. See Day v.
McDonough, 547 U.S. 198, 209 (2006) (“[W]e hold
that district courts are permitted . . . to consider, sua
sponte, the timeliness of a state prisoner's habeas
petition.”), and Jackson v. Sec'y, Dep't
of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002)
(holding that a district court possesses discretion to
sua sponte raise the issue of the timeliness of a
Section 2254 application for habeas corpus).
earlier challenge to this same conviction in
8:17-cv-611-T-27MAP was dismissed as time-barred. Williams
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 Williams 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.”).
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.
(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 amended application for the writ of habeas corpus (Doc.
4) is DISMISSED. The clerk must close this case.
“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive