United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.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.
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).
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.
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.
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.
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).
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”).
“[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.