Scott v. Florida Department of Corrections , 307 F. App'x 347 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10471 ELEVENTH CIRCUIT
JANUARY 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-23034-CV-FAM
VRAIN SCOTT,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 13, 2009)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Vrain Scott appeals the dismissal of his petition for a writ of habeas corpus.
28 U.S.C. § 2254. The district court concluded that the petition was untimely and
successive to a petition denied on the merits in 2000, and we granted a certificate
of appealability to address that ruling. Because Scott’s petition challenges his
conviction and sentence entered in 2004, his petition is neither successive nor
untimely. We vacate the order that dismissed Scott’s petition and remand for
further proceedings.
I. BACKGROUND
Scott was convicted of armed robbery in 1995 in a Florida court, and a state
appellate court affirmed his conviction and sentence. See Scott v. State, ___ So. 2d
___, No. 3D08-1407 (Fla. Dist. Ct. App. Nov. 19, 2008). Scott later filed in a
Florida court a motion for postconviction relief that alleged ineffective assistance
of counsel. See Fla. R. Crim. P. 3.850. The trial court denied the motion, and
Scott did not appeal. Scott filed a federal petition for a writ of habeas corpus in
2000 and again alleged ineffective assistance of trial counsel. The district court
denied the petition, and we denied Scott’s request for a certificate of appealability.
In 2003, Scott filed a motion for postconviction relief in a Florida court. He
argued that the robbery statute under which he was convicted violated the state
constitution and his conviction and sentence did not conform to the jury’s verdict.
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The trial court granted the motion. The court adjudicated Scott guilty of robbery
with a weapon and sentenced him to imprisonment for life. Scott appealed, but his
appellate counsel found no reversible error in the record and filed a brief and
motion to withdraw in compliance with Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396 (1967). The state appellate court affirmed the conviction and sentence in
July 2005 and later denied Scott’s motion for rehearing. Scott v. State, 911 So. 2d
1249 (Fla. Dist. Ct. App. 2005). Scott challenged the judgment in a petition for a
writ of habeas corpus, which an appellate court denied in December 2005. Scott v.
State, 922 So. 2d 215 (Fla. Dist. Ct. App. 2005).
Scott filed another motion for postconviction relief in a Florida court in
January 2006. Scott argued that his conviction and sentence for robbery with a
weapon entered in 2004 violated his right to a jury trial under the Sixth
Amendment, see Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
and his trial counsel failed to preserve that argument for appellate review. The trial
court denied the motion, and an appellate court affirmed in July 2007. Scott v.
State, 963 So. 2d 718 (Fla. Dist. Ct. App. 2007). Scott filed a motion for
rehearing, which the appellate court denied.
In October 2007, Scott filed a federal petition for a writ of habeas corpus
that challenged his conviction and sentence entered in 2004. Scott again argued
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that his conviction was unconstitutional and his counsel was ineffective. The
district court dismissed the petition as successive and untimely.
II. STANDARD OF REVIEW
We review de novo the dismissal of a habeas petition as untimely and
successive. See Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir. 2003); McIver
v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).
III. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996, a state
prisoner may not file a second or successive petition for a writ of habeas corpus in
the district court unless the prisoner has obtained permission from the court of
appeals. 28 U.S.C. § 2244(b)(3)(A). A district court lacks jurisdiction to consider
a second habeas petition that has not been permitted by an appellate court. Hill v.
Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997). We have held that a second
petition that raises issues about a resentencing is not successive if it “attacks the
constitutionality of [the] re-sentencing proceeding only, and not the validity of [the
earlier] conviction.” In re Green, 215 F.3d 1195, 1196 (11th Cir. 2000). The
petition may be filed in the district court without obtaining permission from this
Court. Id.Scott’s petition is not successive because it challenges alleged errors in the
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entry of his conviction and sentence in 2004, which occurred after Scott filed his
first petition for a writ of habeas corpus. Scott was not required to obtain our
permission to file this petition, and the Florida officials concede that his petition, if
not successive, is timely.
We VACATE the order that dismissed Scott’s petition for a writ of habeas
corpus and REMAND for further proceedings.
VACATED AND REMANDED.
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