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Thomas v. Secretary, Florida Department of Corrections

United States District Court, N.D. Florida, Tallahassee Division

July 18, 2019

CURTIS THOMAS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         On November 2, 2018, Petitioner Curtis Thomas, a state inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On June 27, 2019, Respondent filed a motion to dismiss the petition as an unauthorized successive habeas petition, with exhibits. ECF No. 12. Petitioner has filed “Objections to Motion to Dismiss.” ECF No. 13.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration, the undersigned has determined no evidentiary hearing is required for the disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases. The pleadings and attachments before the Court show the petition should be dismissed. See Rule 4, R. Gov. § 2254 Cases (authorizing dismissal “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief” in federal court).

         Procedural Background

         Petitioner Curtis Thomas indicates he challenges his conviction and sentence entered June 25, 2003, by the Second Judicial Circuit, Gadsden County, Florida, following a jury trial in case number 02-00311-CFA. ECF No. 1 at 1-2. Thomas was convicted of two counts of capital sexual battery, in violation of section 794.011(2)(a), Florida Statutes, and two counts lewd and lascivious molestation, in violation of section 800.04(5)(b), Florida Statutes, in connection with events that occurred between April 26, 2001, and April 26, 2002. Ex. A at 30-33; Ex. B, Jury Trial Vol. 2 at 74-75.[1]The trial court adjudicated him guilty and sentenced him to life in prison on the capital sexual battery convictions and 177.4 months on the other convictions, with all sentences to run concurrent. Ex. A at 34-43.

         As indicated in Respondent's motion to dismiss, and as explained in a Report and Recommendation entered in an earlier case, Thomas previously filed a § 2254 petition in this Court challenging this conviction. See Thomas v. Crews, No. 4:11cv164-MCR/CAS, ECF No. 22. The Court dismissed that § 2254 petition as untimely on January 30, 2014. Id. ECF Nos. 23 (Order), 24 (Judgment).

         In the meantime, on June 15, 2012, Thomas filed a second motion for postconviction relief in the state trial court, pursuant to Florida Rule of Criminal Procedure 3.850, alleging newly discovered evidence revealing that one of the victims had falsely accused him of committing the crimes. See Ex. MM at 1-9. The state post-conviction court held evidentiary hearings on July 25, 2014, and November 21, 2014. Exs. NN, OO. By order on March 30, 2015, the court denied postconviction relief. Ex. MM at 150-54.

         Thomas appealed the order denying postconviction relief to the First District Court of Appeal (DCA) and filed an initial brief in case number 1D15-2208. Ex. PP. The State filed an answer brief, Ex. QQ, and Thomas filed a reply, Ex. RR. On February 27, 2017, the First DCA per curiam affirmed the case without a written opinion. Ex. SS; see Thomas v. State, 230 So.3d 828 (Fla. 1st DCA 2017) (table). The mandate issued March 27, 2017. Ex. TT.

         As indicated above, Thomas filed this § 2254 petition on October 18, 2018. ECF No. 1. Respondent has filed a motion to dismiss the petition as untimely, with exhibits. ECF No. 12. Petitioner has filed objections to the motion to dismiss, ECF No. 13, considered by the Court as a reply.

         Analysis

         Petitioner Thomas has not shown a jurisdictional basis for this habeas action. He challenges his confinement pursuant to the same state court judgment that he challenged in his prior § 2254 petition. “The Antiterrorisim and Effective Death Penalty Act gives state prisoners only one opportunity to challenge their sentence in federal court.” Patterson v. Sec'y, Fla. Dep't of Corr., 849 F.3d 1321, 1328 (11th Cir. 2017) (en banc). The dismissal of Thomas's prior § 2254 petition as time-barred “constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction ‘second or successive' petitions under [28 U.S.C.] § 2244(b).” Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005). See, e.g., Patterson, 849 F.3d at 1325-26 (11th Cir. 2017) (“When his first federal petition was dismissed as untimely, Patterson lost his one chance to obtain federal review of his 1998 judgment. Because Patterson's 2011 petition challenges the 1998 judgment a second time, the district court correctly dismissed it as second or successive.” (citation omitted)); McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009) (citing Murray and holding that dismissal as untimely constitutes merits disposition and renders later petition second or successive); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (explaining prior untimely petition “counts” to render subsequent petition successive: “[A] statute of limitations bar is not a curable technical or procedural deficiency but rather operates as an irremediable defect barring consideration of the petitioner's substantive claims.”). Cf. Jordan v. Sec'y Dep't of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007) (not discussing the issue but noting that the first petition was denied with prejudice as untimely, and authorization for filing the second or successive petition had been granted). Thus, the instant petition is “second or successive” for purposes of section 2244(b)(3)(A).

         This Court cannot consider a second or successive § 2254 petition unless the Eleventh Circuit Court of Appeals has authorized its filing. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive [habeas corpus] application . . . 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.”); Burton v. Stewart, 549 U.S. 147 (2007) (holding that federal district court lacked jurisdiction to entertain § 2254 petition because state inmate did not obtain order from Court of Appeals authorizing him to file second petition); see also Rule 9, Rules Gov. § 2254 Cases (“Before presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4).”). See also 28 U.S.C. § 2244(b)(2)(B); Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1260 (11th Cir. 2009) (explaining “[t]he stringent requirements that a petitioner must meet before being allowed to assert a claim in a second habeas petition because of newly discovered facts about events that occurred before the filing of the first petition are contained in § 2244(b)(2)(B)” and “the proper procedure would be to obtain from [the Eleventh Circuit] an order authorizing the district court to consider the second or successive petition”); Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007) (explaining Jordan had filed pro se application in Eleventh Circuit seeking order permitting him to file successive § 2254 petition to raise claim of actual innocence based on newly discovered evidence and “[a] panel of this Court found that Jordan had made out a prima facie case under 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition in the district court and entered an order permitting him to do so”).

         Indeed, “[s]ection 2244(b)(3)(A) requires a district court to dismiss for lack of jurisdiction a second or successive petition for a writ of habeas corpus unless the petitioner has obtained an order authorizing the district court to consider it.” Tompkins, 557 F.3d at 1259. ...


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