Walter Drummond v. Secretary, Florida Department of Corrections

USCA11 Case: 21-13206 Document: 44-1 Date Filed: 01/04/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13206
Non-Argument Calendar
____________________
WALTER DRUMMOND,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-61823-BB
____________________
USCA11 Case: 21-13206 Document: 44-1 Date Filed: 01/04/2023 Page: 2 of 3
2 Opinion of the Court 21-13206
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Walter Drummond, proceeding pro se, appeals the district
court’s dismissal of his habeas corpus petition under 28 U.S.C. §
2554 for lack of jurisdiction because it was successive. On appeal,
Drummond argues that the district court erred in dismissing his
petition because he is actually innocent and counsel in his underly-
ing criminal case was ineffective. We need not reach these issues
because Drummond’s current petition is successive to a previous
petition, which was denied as untimely, and Drummond did not
seek leave from this court under 28 U.S.C. § 2244(b)(3) to file a suc-
cessive petition.
We review de novo whether a habeas corpus petition is suc-
cessive. Ponton v. Sec’y, Fla. Dep’t of Corr., 891 F.3d 950, 952 (11th
Cir. 2018). A successive Section 2254 petition requires authoriza-
tion from this Court. 28 U.S.C. § 2244(b)(3)(A). Accordingly, a dis-
trict court lacks jurisdiction to consider an unauthorized successive
petition. Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007).
When a petitioner seeks to challenge the same judgment
that was challenged in a previous § 2254 petition, the petition will
be deemed successive. See Magwood v. Patterson, 561 U.S. 320,
323–24 (2010). Petitions denied as time-barred are considered to
have been dismissed with prejudice, and subsequent petitions
USCA11 Case: 21-13206 Document: 44-1 Date Filed: 01/04/2023 Page: 3 of 3
21-13206 Opinion of the Court 3
therefore qualify as successive. See Jordan v. Sec’y, Dep’t of Corr.,
485 F.3d 1351, 1353 (11th Cir. 2007).
However, we have recognized that “successive” is not “self-
defining,” and does not necessarily “refer to all habeas applications
filed second or successively in time.” Stewart v. United States, 646
F.3d 856, 859 (11th Cir. 2011). Petitions are not successive when
they present new claims that could not have been raised previ-
ously. Id. at 859–61 (explaining that claims based on a newly dis-
coverable factual predicate are successive, but “[i]f . . . the pur-
ported defect did not arise, or the claim did not ripen, until after
the conclusion of the previous petition, the later petition based on
that defect may be non-successive”).
Drummond’s petition does not fall within the small subset
of unavailable claims described in Stewart because it did not raise a
claim that could not have been raised previously. Stewart, 646 F.3d
at 863. Drummond’s instant petition challenges the same convic-
tion as his previous petition. As nothing prevented Drummond
from raising a claim of actual innocence or ineffective assistance of
counsel in his original petition, the instant petition is successive.
Thus, the district court did not err in dismissing Drum-
mond’s petition as successive because he had previously filed a
§ 2554 petition; his first petition challenged the same judgment;
and he did not seek this Court’s permission to file a successive pe-
tition. Accordingly, we affirm.
AFFIRMED.