Case: 19-13326 Date Filed: 04/07/2020 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13326
Non-Argument Calendar
________________________
D.C. Docket No. 0:09-cv-60303-WJZ
JEFNEY PHILISTIN,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 7, 2020)
Before LUCK, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Jefney Philistin, a pro se Florida state prisoner, appeals from the denial of his
post-judgment motions challenging the adjudication of his
28 U.S.C. § 2254 petition,
claiming that the district court mistakenly failed to hold an evidentiary hearing to
Case: 19-13326 Date Filed: 04/07/2020 Page: 2 of 5
examine the state court’s failure to have Philistin’s competency examined by
multiple experts. This is not the first time Philistin has challenged the state court
competency decision in a § 2254 petition. In 2009, Philistin filed his first § 2254
petition, arguing that the trial court erred by not evaluating his competency to stand
trial. In 2016, Philistin filed a series of motions to amend, supplement, or reconsider
his original § 2254 petition, which the district court denied as untimely and
inappropriate. On appeal of that order, we construed Philistin’s motions collectively
as an application to file a second or successive habeas petition and affirmed the
district court, concluding that the district court lacked subject matter jurisdiction
over Philistin’s 2016 application. In 2018, Philistin again filed numerous motions
to amend, supplement, or reconsider his original § 2254 petition, and the district
court again denied this round of motions as being untimely and inappropriate. In the
instant appeal of that order, Philistin argues that the district court fundamentally
erred and violated his Due Process rights by failing to hold an evidentiary hearing to
complete the evidentiary record concerning the state court’s competency evaluation,
that there was substantial evidence that he was incompetent, and that the magistrate
judge fraudulently falsified the record by stating that there was no record evidence
that he was incompetent to stand trial. After careful review, we affirm.
We review de novo the district court’s subject matter jurisdiction. Zakrzewski
v. McDonough,
490 F.3d 1264, 1267 (11th Cir. 2007). We also review de novo
2
Case: 19-13326 Date Filed: 04/07/2020 Page: 3 of 5
whether a petition for a writ of habeas corpus is successive, and, thus, whether the
district court lacked jurisdiction to consider it without prior authorization. Patterson
v. Sec’y, Fla. Dep’t of Corr.,
849 F.3d 1321, 1324 (11th Cir. 2017).
A state prisoner who has previously filed a § 2254 petition in federal court
must obtain authorization from this Court before filing a “second or successive”
collateral attack on the same conviction.
28 U.S.C. § 2244(b)(3)(A). Without
authorization, the district court lacks jurisdiction to consider a successive § 2254
petition and must dismiss the claims presented therein. Id. § 2244(b)(4); Tompkins
v. Sec’y, Dep’t of Corr.,
557 F.3d 1257, 1259 (11th Cir. 2009). A § 2254 petition is
“second or successive” if the petitioner filed a prior § 2254 petition attacking the
same judgment that was denied or dismissed with prejudice. Guenther v. Holt,
173
F.3d 1328, 1329 (11th Cir. 1999). We look beyond the label of a prisoner’s filing to
determine if he is, in substance, seeking relief under § 2254. See Franqui v. Florida,
638 F.3d 1368, 1374-75 (11th Cir. 2011) (construing a state prisoner’s Rule 60(b)
motion as a successive habeas petition). A claim presented in a second or successive
habeas corpus application under § 2254 that was presented in a prior application
shall be dismissed.
28 U.S.C. § 2244(b)(1).
When a petitioner’s motion does not raise a claim based on the merits of his
§ 2254 petition, however, that motion should not be treated as a successive habeas
petition. Gonzalez v. Crosby,
545 U.S. 524, 533 (2005) (holding that a Rule 60(b)
3
Case: 19-13326 Date Filed: 04/07/2020 Page: 4 of 5
motion challenging a district court’s application of the statute of limitations was not
successive); see also Zakrzewski v. McDonough,
490 F.3d 1264, 1267 (11th Cir.
2007) (holding that a Rule 60(b) motion alleging only fraud upon the court was not
successive under Gonzalez). Nevertheless, a petitioner’s lack of diligence in raising
a procedural error in a Rule 60(b) motion weighs negatively against reversal. See
Gonzalez,
545 U.S. at 537-38. A Rule 60(b) motion must be brought “within a
reasonable time,” or, if the motion is based on Rule 60(b)(1)-(3), “no more than a
year after the entry of the judgment.” Fed. R. Civ. P. 60(c).
In this appeal, Philistin appears to argue, once again, the merits of his original
2009 habeas petition by challenging the district court’s failure to expand the state
court record concerning his competency. That is, by asking for an evidentiary
hearing on the district court’s reading of the state court record, Philistin seeks to
force the district court to reexamine its previous decision that the state court did not
err in its determination that he was competent to stand trial. Therefore, Philistin
again has raised the merits of the claim presented in his original habeas petition by
asking for an evidentiary hearing, and the district court lacked subject matter
jurisdiction to consider that claim. See
28 U.S.C. § 2244(b)(3)(A) (providing that a
petitioner must receive this Court’s permission to file a second or successive habeas
petition); Guenther,
173 F.3d at 1329.
4
Case: 19-13326 Date Filed: 04/07/2020 Page: 5 of 5
Moreover, even if we were to broadly construe Philistin’s motions as a
collective Rule 60(b) motion to reopen that does not challenge the merits of his §
2254 petition, his motions are untimely. See Fed. R. Civ. P. 60(c) (noting that Rule
60(b) motions must be brought within a reasonable time). It has been eight years
since the district court denied Philistin habeas relief. An eight-year delay in
challenging the district court’s failure to hold an evidentiary hearing is not “a
reasonable time.” See id. Accordingly, we affirm.
AFFIRMED.
5
