Anthony Lamar Smith v. John D. Southwood

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 27, 2007
No. 06-14532 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00597-CV-J-25-MMH
ANTHONY L. SMITH,
Plaintiff-Appellant,
versus
JOHN SOUTHWOOD, Honorable, Circuit Judge,
KENNETH BOSTON, Asst. State Attorney,
JOHN DELANEY, Asst. State Attorney,
BRADFORD L. THOMAS, District Court Judge,
EDWIN B. BROWNING, District Court Judge,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 27, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Florida prisoner Anthony Lamar Smith, proceeding pro se, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights action. In his
complaint, Smith alleged ineffective assistance of counsel, due process violations,
and equal protection violations. The district court concluded Smith needed to file a
habeas corpus petition because he sought a new criminal trial based on the alleged
constitutional violations, and dismissed his claim without prejudice because it had
advised Smith that, pursuant to the Antiterrorism and Effective Death Penalty Act,
110 Stat. 1214, § 106(b)(3)(a), he needed authorization to file a second or
successive habeas corpus petition.
Claims challenging the fact of conviction “fall within the ‘core’ of habeas
corpus,” while claims challenging the conditions of confinement may be brought in
a civil rights action under § 1983. Nelson v. Campbell, 124 S. Ct. 2117, 2122
(2004). Thus, a civil rights action under § 1983 is not appropriate when a state
prisoner challenges the fact of his incarceration. Preiser v. Rodriguez, 93 S. Ct.
1827, 1841 (1973).
When a court concludes a prisoner is in fact challenging his conviction, it
should treat the case as if it was raised as a habeas corpus petition, and apply the
corresponding procedural and exhaustion requirements of the AEDPA.
Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.), cert.denied, 127 S. Ct. 4672
(2006). As such, the requirement that an applicant obtain an order authorizing the
filing of a second or successive habeas application applies. See 28 U.S.C.
§ 2244(b)(3)(A). Thus, we held a district court did not err in dismissing a § 1983
complaint, construed as an attempt to file a second habeas corpus petition, because
the applicant had not obtained our permission to file the petition. Fugate v. Dep’t
of Corr., 301 F.3d 1287, 1288 (11th Cir. 2002).
Smith was challenging the fact of his conviction as illustrated by his express
request for a new criminal trial. See Preiser, 93 S. Ct. at 1841. Thus, the exclusive
remedy for his claim was to file a habeas corpus petition, pursuant to 28 U.S.C.
§ 2254. See Nelson, 124 S. Ct. at 2122. Smith’s complaint was an unauthorized
second or successive habeas corpus petition, and the district court did not err in
dismissing his complaint. See Fugate, 301 F.3d at 1288.
AFFIRMED.
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