Lester Lynch, Jr. v. Beth Cabell ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6341
LESTER B. LYNCH,
Petitioner - Appellant,
v.
BETH CABELL,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, Senior District Judge. (1:21-cv-00221-AJT-IDD)
Submitted: November 17, 2022 Decided: December 7, 2022
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Lester B. Lynch, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lester Lynch seeks to appeal the district court’s order denying relief on his 28
U.S.C. § 2254 petition. A state prisoner who wishes to file a second or successive § 2254
petition must file a motion with the court of appeals requesting an order authorizing the
district court to consider such a petition. See 28 U.S.C. § 2244(b)(3)(A). If a petitioner
does not receive authorization to file a second or successive petition, the district court must
dismiss it for lack of jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007); see
also Magwood v. Patterson, 561 U.S. 320, 338-39 (2010) (noting that a district court should
dismiss without prejudice, not deny on the merits, an unauthorized second or successive
application challenging the movant’s sentence).
Lynch previously filed a § 2254 petition, which was addressed on the merits.
Lynch v. Watson, No. 1:08-cv-00929-JCC-JFA (E.D. Va. Sept. 10, 2009); see Harvey v.
Horan, 278 F.3d 370, 380 (4th Cir. 2002) (stating that “a dismissal for procedural default
is a dismissal on the merits”), abrogated on other grounds by Skinner v. Switzer, 562 U.S.
521 (2011). And, although he sought authorization from this court to file a second or
successive petition in the district court, we denied authorization. In re Lynch, No. 21-117
(4th Cir. Mar. 12, 2021) (unpublished order). Because Lynch had not received
authorization to file a second or successive petition, the district court lacked jurisdiction to
rule on Lynch’s petition. See Burton, 549 U.S. at 153. We therefore vacate the district
court’s order dismissing Lynch’s petition and remand with instructions for the district court
to dismiss the petition for want of jurisdiction. Lynch’s motion for appointment of counsel
is denied. We dispense with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
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