United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus filed under
28 U.S.C. § 2254. (Doc. 1). The undersigned concludes
that the petition should be dismissed for lack of
jurisdiction, because it is an unauthorized “second or
successive” habeas corpus application.
Background and Procedural History
Rontarian Wright was convicted of armed carjacking and
dealing in stolen property in Gadsden County Circuit Court
No. 03-107-CFA. (Doc. 1 at 1-2). Wright was sentenced to a
total term of 25 years of imprisonment. (Id. at 2).
The Florida First District Court of Appeal affirmed the
judgment on September 11, 2007, with mandate issuing October
10, 2007. (Id. at 3); See Wright v. State,
965 So.2d 129 (Fla. 1st DCA 2007) (Table). Wright now
challenges his criminal judgment on various grounds of
prosecutorial misconduct. Wright admits on the petition form
that he previously filed a § 2254 petition challenging
the same criminal judgment, and that the petition was denied.
(Doc. 1 at 7-8).
court takes judicial notice of its own records in Wright
v. Buss, No. 4:10cv262-LC/CAS. Wright initiated
Wright v. Buss, on June 25, 2010, by filing a §
2254 petition challenging the same state court judgment.
Wright raised five claims of ineffective assistance of trial
counsel. (See No. 4:10cv262-LC/CAS, Doc. 8). This
court denied the petition on July 9, 2013. (Id.,
Docs. 23, 25, 26). The Eleventh Circuit denied Wright a
certificate of appealability on November 8, 2013.
(Id., Doc. 31).
2244(b)(3)(A) of Title 28 of the United States Code provides:
“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.” 28 U.S.C. § 2244(b)(3)(A); see
also Rule 9, Rules Governing Section 2254 Cases in the
United States District Courts (2018) (“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).”). A
district court lacks jurisdiction to consider a “second
or successive” habeas corpus petition that was not
previously authorized by an appellate court. Burton v.
Stewart, 549 U.S. 147, 152, 157 (2007) (holding that
district court lacked jurisdiction to entertain second habeas
petition because prisoner failed to obtain order from court
of appeals authorizing him to file the petition); Fugate
v. Dep't of Corr., 301 F.3d 1287, 1288 (11th Cir.
pleadings and this court's records establish that the
present petition is a “second or successive”
habeas corpus application. Wright does not allege or show
that he obtained the Eleventh Circuit's authorization to
file a second application. Wright's failure to receive
the requisite authorization operates as a jurisdictional bar
and requires dismissal of this case. See Burton, 549
U.S. at 152, 157; Fugate, 301 F.3d at 1288.
Certificate of Appealability is Not Warranted
11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides: “[t]he district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” If a
certificate is issued, “the court must state the
specific issue or issues that satisfy the showing required by
28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254
Rule 11(a). A timely notice of appeal must still be filed,
even if the court issues a certificate of appealability.
See 28 U.S.C. § 2254 Rule 11(b).
2253(c) permits the issuance of a COA only where a petitioner
has made a ‘substantial showing of the denial of a
constitutional right.'” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (quoting 28
U.S.C. § 2253(c)). “At the COA stage, the only
question is whether the applicant has shown that
‘jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.'”
Buck v. Davis, 580 U.S. -, 137 S.Ct. 759, 774 (2017)
(quoting Miller-El, 537 U.S. at 327). “When
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
Here, Wright has not made the requisite demonstration.
Accordingly, the court should deny a certificate of
appealability in its final order.
second sentence of Rule 11(a) provides: “Before
entering the final order, the court may direct the parties to
submit arguments on whether a certificate should
issue.” 28 U.S.C. § 2254 Rule 11(a). If there is
an objection to this recommendation by either party, that
party may bring such argument to the attention of the
district judge in the objections permitted to this report and