Gerson Ayala Romero v. Benjamin Ford

Case: 17-15490 Date Filed: 08/23/2018 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15490
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-00132-JRH-BKE
GERSON AYALA ROMERO,
Petitioner-Appellant,
versus
BENJAMIN FORD,
ATTORNEY GENERAL, STATE OF GEORGIA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(August 23, 2018)
Before WILSON, JORDAN, and HULL, Circuit Judges.
PER CURIAM:
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Gerson Ayala Romero, a pro se Georgia prisoner serving 20 years’
imprisonment after pleading guilty to multiple offenses, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition as second or successive.
Romero argues (1) that he received ineffective assistance of counsel because his
counsel did not prepare a defense and communicate with him. He argues that his
counsel’s performance caused him to enter a guilty plea and that he was
prejudiced; (2) that his plea was not knowing, intelligent, and voluntary because
his counsel did not provide him with an interpreter to understand the consequences
of entering a guilty plea, and that his rights under Boykin v. Alabama, 395 U.S.
238, 89 S. Ct. 1709 (1969), were violated because he did not knowingly waive his
rights against self-incrimination and to a jury trial; and (3) that the denial of an
interpreter violated his due process rights because he did not understand the
consequences of entering a guilty plea.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that, before a movant may file a second or successive § 2254 habeas
petition, the petitioner first must obtain an order from this court authorizing the
district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Absent our
authorization, “the district court lacks jurisdiction to consider a second or
successive [§ 2254] petition.” Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003) (per curiam). The Supreme Court has held that the phrase “second or
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Case: 17-15490 Date Filed: 08/23/2018 Page: 3 of 3
successive” in § 2244(b) refers to a second or successive petition challenging the
same state-court judgment. Magwood v. Patterson, 561 U.S. 320, 332–33, 130 S.
Ct. 2788, 2797 (2010).
The district court did not err in determining that Romero’s § 2254 petition
was second or successive. Romero previously filed a § 2254 petition that was
denied with prejudice as untimely in 2016; therefore, he was required to obtain our
authorization in order to file a second or successive § 2254 petition. 28 U.S.C. §
2244(b)(3)(A). Because he did not have our authorization, the district court
properly dismissed the petition for lack of jurisdiction.
AFFIRMED.
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