WARD
v.
SECRETARY, DEPARTMENT OF CORRECTIONS (MARION COUNTY)
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Donald Eugene Ward, Jr. filed a second federal habeas petition challenging his 1998 Marion County, Florida conviction. The district court dismissed the petition for lack of jurisdiction because it was successive to a prior § 2254 petition that had been dismissed as untimely, and Ward did not obtain authorization from the Eleventh Circuit to proceed with a successive petition.
The district court lacks jurisdiction to hear the successive § 2254 petition under 28 U.S.C. § 2244(b)(3)(A) because Ward's first petition was dismissed as untimely (which constitutes dismissal with prejudice), making the second petition successive, and Ward did not obtain requisite appellate authorization.
[1] A district court lacks jurisdiction to hear a second or successive federal habeas corpus petition under 28 U.S.C. …
[2] A federal habeas corpus petition is considered successive if a prior petition challenging the same conviction was denied or dismissed with prejudice.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Pursuant to 28 U.S.C. § 2244(b)(3)(A), a district court lacks jurisdiction to hear a "second or successive" § 2254 petition absent an order from the appropriate appellate court authorizing the petition's consideration.”
Establishes the statutory requirement for jurisdiction over successive habeas petitions
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Join FLexlaw to unlock all legal intelligenceWard filed a § 2254 habeas petition in the Middle District of Florida (case 5:05-cv-513) challenging his 1998 Marion County conviction, which was dism…
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Before the Court is Petitioner Donald Eugene Ward, Jr.'s pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). Petitioner is challenging his conviction entered by the Fifth Judicial Circuit in and for Marion County, Florida, in case number 1998-CF-134. Id. at 2. Court records reflect that Petitioner has previously filed a federal habeas petition in the Middle District of Florida in case number 5:05- cv-513-WTH-GRJ, challenging the same Marion County, Florida conviction that this Petition challenges. The petition in the previous case was dismissed as untimely. See Doc. 13, Case No. 5:05-cv-513-WTH-GRJ.
Pursuant to 28 U.S.C. § 2244(b)(3)(A), a district court lacks jurisdiction to hear a "second or successive” § 2254 petition absent an order from the appropriate appellate court authorizing the petition's consideration. “[A] second petition is successive if the first was denied or dismissed with prejudice.” [fn 1] Dismissal of a § 2254 petition as untimely constitutes a dismissal with prejudice. See Patterson v. Sec'y, Fla. Dep't of Corr., 849 F. 3d 1321, 1325-26 (11th Cir. 2017) (en banc).
Here, there is no dispute that Petitioner's first § 2254 petition was dismissed as untimely. Because that dismissal operates as one with prejudice, see id., Petitioner's instant § 2254 petition is successive, see Candelario, 592 F. App'x at 785 n.1. Petitioner does not allege that he applied to the Eleventh Circuit for an order authorizing the Court to consider his successive petition. This Court is therefore without jurisdiction to hear Petitioner's claims. And because the Court is without jurisdiction, it cannot issue a certificate of appealability. See Williams v. Chatman, 510 F. 3d 1290, 1295 (11th Cir. 2007).
Accordingly, Petitioner's § 2254 Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. A certificate of appealability is denied, and Petitioner is not entitled to proceed on appeal in forma pauperis. The Clerk is directed to enter judgment accordingly and close this case.
DONE AND ORDERED at Tampa, Florida, on January 6, 2025.
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
Copies furnished to: Petitioner, pro se
[fn 1]: Unpublished opinions of the court of appeals are not binding precedent but may be cited as persuasive authority. 11th Cir. R. 36-2.