Layon Dean Jeremiah v. William Terry , 322 F. App'x 842 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15995 ELEVENTH CIRCUIT
APRIL 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-01736-CV-TWT-1
LAYON DEAN JEREMIAH,
Petitioner-Appellant,
versus
WILLIAM TERRY,
In His Official Capacity as Warden of
Macon State Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 8, 2009)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Layon Dean Jeremiah, a counseled state prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition as second or successive. After
review, we affirm.
I. BACKGROUND
In 1999, Jeremiah was tried in Georgia state court on charges of kidnapping,
rape, battery, three counts of aggravated assault, two counts of possession of a
firearm during the commission of a felony and fleeing or attempting to elude a
police officer. According to the evidence presented at trial, Jeremiah’s wife, Lisa,
went to a hospital for treatment of injuries to her face and bruises on her body.
Jeremiah v. State, 250 Ga. App. 397, 397, 551 S.E.2d 819, 822 (2001). Lisa told
her mother, Myrna Daniel, and then a police officer that Jeremiah had beaten and
sexually assaulted her. Id. Police took statements from Lisa and her mother and
charged Jeremiah with rape, battery and aggravated assault. Id. at 397-98, 551 S.E.
2d at 822. However, Jeremiah was not taken into custody that day. Id. at 398, 551
S.E. 2d at 822.
The next day, the mother, Daniel, placed a 911 call and reported that
Jeremiah had entered her house with a shotgun, held it to Daniel’s head and forced
Lisa to leave with him. Id. Daniel gave a written statement to a responding police
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officer that Jeremiah had forced Lisa from the home. Id. Later that evening, law
enforcement observed Jeremiah and Lisa drive up to his home and secured Lisa as
she exited the car. Id. Jeremiah fled in the car and was apprehended after he
wrecked the car and was chased down on foot. Id.
After Jeremiah was arrested, Daniel and Lisa recanted their statements to
police. Id. At trial, Lisa refused to testify, asserting Fifth Amendment and marital
privileges. Id. The trial court also granted Jeremiah’s motion in limine and
excluded Lisa’s pre-trial statements. Id. Daniel testified that her pre-trial
statements were false “and that she had been trying to break up [Jeremiah’s]
relationship with her daughter.” Id. at 399, 551 S.E 2d at 823. The jury convicted
Jeremiah of kidnapping, battery, two counts of aggravated assault, fleeing or
attempting to elude an officer and possession of a firearm during the commission
of a felony, but acquitted Jeremiah of rape, aggravated sodomy and one count of
aggravated assault. Id. at 397, 551 S.E. 2d at 821-22.
With the exception of the battery conviction, Jeremiah’s convictions were
affirmed on direct appeal. Id. at 397, 551 S.E. 2d at 822. In 2002, Jeremiah filed a
state habeas petition challenging his convictions, which was denied. On October
31, 2005, Jeremiah filed his first federal habeas petition, pursuant to 28 U.S.C. §
2254, which was also denied. Both this Court and the district court denied
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Jeremiah’s request for a certificate of appealability (“COA”). In July 2007,
Jeremiah filed a motion for a new trial in the state trial court, arguing that newly
discovered evidence – the recantations of his wife and mother-in-law – showed he
was actually innocent. The state trial court denied the motion for a new trial
without holding a hearing.
On December 27, 2007, Jeremiah filed with this Court a request for
permission to file a successive § 2254 petition. Jeremiah’s request sought to assert,
inter alia, a claim of actual innocence based on the “new discovered evidence,”
namely affidavits from his wife and mother-in-law stating that his wife was not
kidnapped and that his mother-in-law gave a fabricated statement to the police.
This Court denied Jeremiah’s request to file a successive § 2254 petition. In re
Jeremiah, No 07-15992 (11th Cir. Jan. 18, 2008).
Nonetheless, on May 18, 2008, Jeremiah filed the instant § 2254 petition in
the district court asserting a claim of actual innocence. Citing Panetti v.
Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007), Jeremiah argued that he did not
need this Court’s permission to file his second § 2254 petition because his actual
innocence claim was based on newly discovered evidence. Attached to the second
§ 2254 petition were affidavits from his wife Lisa and her mother, Daniel. Lisa
averred that she had not been kidnapped and that she did not testify at trial because
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she asserted spousal immunity. Daniel averred that she called police and falsely
told them that Jeremiah had kidnapped his wife and that she had testified at trial
that her statements to police were false.
Over Jeremiah’s objection, the district court adopted the magistrate judge’s
recommendation finding that the district court lacked jurisdiction because Jeremiah
had not obtained permission to file a second § 2254 petition. The district court
dismissed Jeremiah’s § 2254 petition without prejudice to his right to seek
permission with this Court to file a successive habeas petition. The district court
granted Jeremiah’s request for a COA on the issue of “whether the Petitioner is
required to obtain permission of the Court of Appeals to file a second federal
habeas corpus where he claims that newly discovered evidence establishes his
actual innocence.”
II. DISCUSSION
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). If a state prisoner files a second
or successive § 2254 petition without this authorization, the district court is
required to dismiss the petition for lack of jurisdiction “unless the petitioner has
obtained an order authorizing the district court to consider it.” Tompkins v. Sec’y,
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Dep’t of Corr., ___ F.3d ___, No. 09-10022, 2009 WL 296028, at * 1 (11th Cir.
Feb. 9, 2009), cert. denied __ S. Ct. __, No. 08-0626 (Feb. 11, 2009).1
On appeal, Jeremiah acknowledges that this is his second § 2254 petition
and that he did not obtain permission from this Court before filing it. However,
Jeremiah argues that his claim involves newly discovered evidence of actual
innocence and falls within an exception to the “second or successive” petition bar
recognized by the Supreme Court in Panetti.
In Panetti, the Supreme Court concluded that “[t]he statutory bar on ‘second
or successive’ applications does not apply to a Ford claim [of mental incompetency
to be executed] brought in an application filed when the claim is first ripe.” 551
U.S. at ___, 127 S. Ct. at 2855. We have rejected attempts to expand Panetti’s
narrow exception to “claims that can be and routinely are raised in initial habeas
petitions.” See Tompkins, 2009 WL 296028, at *2 (involving Gardner, Brady and
Giglio claims of trial error). As we have explained, “[t]he violation of
constitutional rights asserted in these kinds of claims occur, if at all, at trial or
sentencing and are ripe for inclusion in a first petition.” Id. Thus, Panetti does not
mean “any claim based on new evidence is not ‘ripe’ for presentation until the
evidence is discovered, even if that discovery comes years after the initial habeas
1
“We review de novo a district court’s dismissal of a federal habeas petition.” Melson v.
Allen, 548 F.3d 993, 996 (11th Cir. 2008).
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petition is filed.” Id. Rather, claims based on “newly discovered facts about
events that occurred before the filing of the first petition” must meet the statutory
requirements for second or successive petitions before they can proceed. Id.
Here, Jeremiah does not raise a Ford claim of mental incompetence to be
executed. Rather, Jeremiah raises a claim of actual innocence. Jeremiah contends
that his claim was not ripe when he filed his first § 2254 petition because he had
not obtained the new evidence demonstrating his actual innocence. However, the
facts underlying Jeremiah’s claim of actual innocence existed at the time he filed
his first federal habeas petition. Under our precedent, such a claim does not fall
within the Panetti exception. Accordingly, Jeremiah was required to seek our
permission to file his successive § 2254 petition raising this claim. Jeremiah did
not do so, and, thus, the district court properly dismissed his successive § 2254
petition for lack of jurisdiction.
To the extent Jeremiah now seeks permission to file a successive § 2254
petition raising his claim of actual innocence, we deny his request. This Court
already denied such a request when he sought permission in December 2007.
Specifically, this Court stated:
Jeremiah asserts that his first claim relies upon newly discovered
evidence, consisting of new testimony showing that he is actually
innocent. Jeremiah does not allege, however, that his new evidence
establishes constitutional error. See In re Boshears, 110 F.3d 1538,
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1541 (11th Cir. 1997); 28 U.S.C. § 2244(b)(2)(B)(i), (ii).
In re Jeremiah, No 07-15992, slip. op. at 2 (11th Cir. Jan. 19, 2008). Furthermore,
even if Jeremiah alleged that his new evidence established constitutional error, he
could not make a prima facie showing that his application meets the statutory
requirements for asserting such a claim in a successive application. See 28 U.S.C.
§ 2244(b)(2)(B)(i) (requiring that “the factual predicate for the claim could not
have been discovered previously through the exercise of due diligence”).
Although Jeremiah contends his wife’s and mother-in-law’s affidavits constitute
new evidence of his innocence that he could not have discovered through the
exercise of due diligence, in fact, Jeremiah has known of their recantations since
before his criminal trial and certainly since before the filing of his first federal
habeas petition. Thus, his evidence is neither new nor newly discovered.2
AFFIRMED.
2
We decline to address Jeremiah’s Confrontation Clause and time-bar arguments because
they are outside the scope of the COA. See Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998).
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