Opinion
No. 17-12910
12-05-2017
JOSEPH WILSON, Petitioner-Appellant, v. WARDEN, ATTORNEY GENERAL, STATE OF ALABAMA, Respondents-Appellees.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 3:17-cv-00242-WKW-TFM Appeal from the United States District Court for the Middle District of Alabama Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges. PER CURIAM:
Petitioner Joseph Wilson, an Alabama prisoner proceeding pro se, appeals the district court's dismissal of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The court dismissed the § 2254 petition for lack of jurisdiction because it was an unauthorized second or successive petition. After careful review, we affirm.
I. BACKGROUND
In November 2004, Petitioner filed a § 2254 petition in the Middle District of Alabama, challenging his 2001 state convictions for six counts of theft by deception. The district court dismissed Petitioner's § 2254 petition as time-barred and Petitioner did not appeal.
In the meantime, Petitioner also filed a § 2254 petition, challenging his 2003 state convictions for two counts of theft by deception. The district court dismissed the petition with prejudice and denied Petitioner a certificate of appealability. We also denied Petitioner a certificate of appealability.
In April 2017, Petitioner filed the § 2254 petition that is the subject of the present appeal. In that petition, he challenged his 2001 and 2003 theft-by-deception convictions. A magistrate judge issued a Report and Recommendation ("R&R"), recommending that the petition be dismissed for lack of subject matter jurisdiction under 28 U.S.C. § 2244(b)(3)(A) because Petitioner had not sought permission from our Court to file a successive habeas petition. Over Petitioner's objection, the district court adopted the R&R and dismissed the § 2254 petition without prejudice. II. DISCUSSION
We note that a certificate of appealability was not required for this appeal. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (concluding that a certificate of appealability is not necessary to appeal a district court's dismissal for lack of subject matter jurisdiction because such an order does not constitute "a final order in a habeas corpus proceeding" for purposes of 28 U.S.C. § 2253(c)).
We review de novo whether a petition for a writ of habeas corpus is second or successive. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011); see also Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1009 (11th Cir. 2012) (reviewing the district court's dismissal of a 28 U.S.C. § 2254 petition de novo). A state prisoner who has previously filed a § 2254 petition in federal court must obtain authorization from our Court before filing a "second or successive" collateral attack on the same conviction. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks jurisdiction to consider a successive § 2254 petition and must dismiss it. Tompkins v. Sec'y Dep't of Corr., 557 F.3d 1257, 1259 (11th Cir. 2009).
Petitioner's present § 2254 petition challenges his 2001 and 2003 state convictions for theft by deception. Petitioner already filed § 2254 petitions challenging the same 2001 and 2003 convictions, both of which were dismissed with prejudice. See Guenther v. Holt, 173 F.3d 1328, 1329 (11th Cir. 1999) (explaining that a subsequent § 2254 petition is second or successive if the first petition was denied or dismissed with prejudice); see also Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007) (indicating that a petition dismissed as untimely is considered to be with prejudice for purposes of § 2244(b)(3)(A)). Because Petitioner failed to obtain authorization from our Court before filing his § 2254 petition in the district court, the district court lacked jurisdiction to consider his claims and was required to dismiss the petition. See Tompkins, 557 F.3d at 1259. Accordingly, the district court's dismissal of Petitioner's § 2254 petition is AFFIRMED.
Petitioner also filed a request with our Court for leave to file a second or successive § 2254 petition, but we denied that request because Petitioner failed to meet the requirements under 28 U.S.C. § 2244(b)(2). See In re Wilson, case no. 17-12149, manuscript op. at 2-3 (11th Cir. June 27, 2017) (denying Petitioner's application for leave to file a second or successive habeas petition based on his 2001 and 2003 state convictions for theft by deception). --------