Joseph Wilson v. Warden, Attorney General, State of Alabama , 706 F. App'x 628 ( 2017 )


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  •            Case: 17-12910   Date Filed: 12/05/2017   Page: 1 of 4
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-12910
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:17-cv-00242-WKW-TFM
    JOSEPH WILSON,
    Petitioner-Appellant,
    versus
    WARDEN,
    ATTORNEY GENERAL, STATE OF ALABAMA,
    Respondents-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    ________________________
    (December 5, 2017)
    Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.
    PER CURIAM:
    Case: 17-12910     Date Filed: 12/05/2017   Page: 2 of 4
    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
    2
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    objection, the district court adopted the R&R and dismissed the § 2254 petition
    without prejudice.
    II.    DISCUSSION 1
    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)
    1
    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)).
    3
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    (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. 2
    2
    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).
    4