MACK v. CARR ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION STEVE MACK, : : Petitioner, : : V. : : NO. 5:23-cv-00342-MTT-MSH CHRISTOPHER CARR, : : Respondent. : _________________________________: ORDER OF DISMISSAL Petitioner Steve Mack, a prisoner in the Riverbend Correctional Facility in Milledgeville, Georgia, has filed a petition for a writ of habeas corpus challenging his January 2008 conviction in the Houston County Superior Court. Recast Pet., ECF No. 9. Petitioner has also paid the $5.00 filing fee for this case. Petitioner, however, has challenged this same conviction through a previous federal habeas corpus petition, which this Court dismissed. See Order Adopting R. & R., Mack v. Medlin, Case No. 5:14-cv-00322-MTT-CHW (M.D. Ga March 10, 2016), ECF No. 29. “Before a second or successive application [for a writ of habeas corpus] is filed in the district court, the applicant shall 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); see also Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), cert. denied, 528 U.S. 1085 (2000). The instant petition is successive within the meaning of § 2244(b). Moreover, it does not appear, and Petitioner does not allege, that a three-judge panel of the Eleventh Circuit Court of Appeals has authorized this Court to consider a successive habeas petition for his 2008 conviction. Without such an order, this Court lacks jurisdiction to consider the successive claims. See § 2244(b)(3)(A); Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932, 933-34 (11th Cir. 2001) (per curiam). The Court therefore DISMISSES the petition without prejudice to Petitioner’s right to file in the Eleventh Circuit a motion for leave to file a second or successive habeas petition pursuant to § 2244(b)(3). The Court also DIRECTS the Clerk to furnish Petitioner with the application form required by the Eleventh Circuit.1 SO ORDERED and DIRECTED, this 15th day of November, 2023. S/ Marc T. Treadwell MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT 1 “[A] dismissal of a successive habeas petition for lack of subject-matter jurisdiction does not constitute a ‘final order in a habeas proceeding’ for purposes of 28 U.S.C. § 2253(c). . . . Instead, such a dismissal is a ‘final decision’ pursuant to 28 U.S.C. § 1291 and a [Certificate of Appealability] is thus ‘unnecessary. . . .’” Bolin v. Sec’y, Fla. Dep’t of Corr., 628 F. App’x 728, 730 (11th Cir. 2016) (per curiam) (quoting Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (affirming dismissal of successive habeas petition for lack of subject-matter jurisdiction)). Accordingly, the Court will not address whether Petitioner has met the standards for issuance of a Certificate of Appealability.