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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10893
Non-Argument Calendar
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D.C. Docket No. 2:19-cv-00037-SPC-CM
GLENN LEE SELDEN,
Petitioner - Appellant,
versus
ELIZABETH M. WARREN,
Respondent - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 3, 2020)
Before JILL PRYOR, BRANCH and ANDERSON, Circuit Judges.
PER CURIAM:
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Glen Selden, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal of his construed
28 U.S.C. § 2254 petition for a writ of habeas
corpus as an unauthorized second or successive § 2254 petition and denial of his
post-judgment motion for release. After careful review, we affirm.
Selden filed a § 2254 petition in 2010 in which he challenged his convictions
for armed burglary and grand theft and resulting sentence. The district court
denied the petition as untimely and, alternatively, as meritless. Selden then filed
several additional pleadings construed as § 2254 petitions, including the instant
filing, which the district court construed as a pro se § 2254 petition. Construed
liberally, the petition alleged that Selden was entitled to release from prison. The
district court dismissed this petition for lack of jurisdiction because it was
successive and he had not first obtained authorization from this Court under
28
U.S.C. § 2244(b)(3) to file it.1 After the district court entered its judgment, Selden
filed a “Demand of Immediate Release Pending Appeal,” which the district court
construed as a motion for release and denied, concluding that the motion presented
no grounds for Selden’s release. Selden has appealed.
1
The court dismissed the petition without prejudice to permit Selden to seek
authorization from this Court to file a second or successive § 2254 petition. Selden has not done
so.
2
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We review de novo a district court’s determination that a habeas petition is
second or successive. Stewart v. United States,
646 F.3d 856, 858 (11th Cir.
2011). We review the denial of a post-judgment motion for an abuse of discretion.
Green v. Union Foundry Co.,
281 F.3d 1229, 1233 (11th Cir. 2002). Although
“we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a
pro se litigant are deemed abandoned.” Timson v. Sampson,
518 F.3d 870, 874
(11th Cir. 2008) (citations omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 provides that,
before an inmate in custody due to a state court judgment can file a “second or
successive” federal habeas petition under § 2254, the inmate must “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). In general, a “district judge lacks
jurisdiction to decide a second or successive petition filed without our
authorization.” Insignares v. Sec’y, Fla. Dep’t of Corr.,
755 F.3d 1273, 1278 (11th
Cir. 2014).
We recognize that the phrase “second or successive” is “not self-defining”
and does not “refer to all habeas applications filed second or successively in time.”
Stewart,
646 F.3d at 859. To determine whether an inmate’s petition is second or
successive, we look to whether the petitioner filed a federal habeas petition
challenging the same judgment. Insignares, 755 F.3d at 1279. If so, then a second
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petition is successive if the first was denied or dismissed with prejudice. Guenther
v. Holt,
173 F.3d 1328, 1329 (11th Cir. 1999). A dismissal for untimeliness is a
dismissal with prejudice. See Jordan v. Sec’y, Dep’t of Corr.,
485 F.3d 1351, 1353
(11th Cir. 2007).
Here, the district court determined that Selden’s present petition was barred
as second or successive. On appeal, Selden’s brief only addresses why he is
entitled to habeas relief, not whether the district court erred in dismissing his
unauthorized, successive petition for lack of subject matter jurisdiction. Selden
thus has abandoned any such argument. See Timson,
518 F.3d at 874.
Even construing Selden’s pro se brief as a challenge to the district court’s
dismissal of Selden’s present petition for lack of jurisdiction, we conclude that the
district court did not err in dismissing the petition. The petition was impermissibly
successive because it challenged the same state sentence as his first § 2254
petition, which was dismissed as untimely. Because Selden failed to obtain leave
from this Court to file his current petition, the district court properly dismissed it
for lack of subject matter jurisdiction. See Insignares, 755 F.3d at 1278. We
therefore cannot review the substantive challenges that Selden has raised in his
present petition. Finally, because the district court correctly determined that it had
no authority to address Selden’s petition, the court was within its discretion to deny
Selden’s motion for release. We therefore affirm both of the district court’s orders.
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AFFIRMED.
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