Opinion
5:22-cv-102-SPC-PRL
03-28-2022
RICKY R. MCCULLOUGH, JR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.
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SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
Before the Court is Ricky R. McCullough, Jr.'s “Motion for Summary Judgment, ” construed as a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). McCullough challenges his 2011 life sentence for robbery and aggravated assault with a firearm (Marion County). (Id.) He alleges that the probable cause affidavit authorizing his arrest was defective. (Id. at 1-4). McCullough asks the Court to set aside his conviction and sentence and order his release from prison. (Id. at 5).
“When an inmate raises any challenge to the ‘lawfulness of confinement or [the] particulars affecting its duration,' his claim falls solely within 'the province of habeas corpus' under § 2254.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (quoting Hill v. McDonough, 547 U.S. 573, 579 (2006)).
McCullough filed a prior federal habeas petition in November 2014, which this Court denied with prejudice. McCullough v. Sec'y, Fla. Dep't of Corr., No. 5:14-cv-130-WTH-PRL, Doc. 29 (M.D. Fla. Nov. 1, 2016). He did not appeal. In October 2020, McCullough filed another habeas petition, which was dismissed as successive. McCullough v. Sec'y, Fla. Dep't of Corr., No. 5:20-cv-496-PGB-PRL, Doc. 15 (M.D. Fla. Oct. 21, 2021). He did not appeal.
“Congress proscribes that a state prisoner only has one opportunity for federal habeas review; a second petition will be denied as successive.” Faison v. Sec'y, Fla. Dep't of Corr., 806 Fed.Appx. 938, 938-39 (11th Cir. 2020). For a second or successive habeas petition to be proper, a petitioner must get authorization from the relevant court of appeals. 28 U.S.C. § 2244(b)(3)(A). Absent such an authorization, the district court has no jurisdiction to entertain a second or successive habeas motion. Burton v. Stewart, 549 U.S. 147, 157 (2007).
McCullough's Petition is successive, and the Eleventh Circuit has not authorized this Court to consider it. Thus, the Court lacks jurisdiction.
The Court does not need to rule on whether a Certificate of Appealability should issue in this case. See, e.g., Osbourne v. Sec'y, Fla. Dep't of Corr., 968 F.3d 1261, 1264 n.3 (11th Cir. 2020) (“Although generally appeals from § 2254 proceedings require a certificate of appealability (“COA”), no COA is necessary to appeal the dismissal for lack of subject matter jurisdiction of a successive habeas petition. . . “) (citing Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004)); see also Rosa v. Finkelstein, 837 Fed.Appx. 704, 705-06 (11th Cir. 2020).
Accordingly, it is now
ORDERED:
Ricky R. McCullough, Jr.'s (construed) Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED. The Clerk is DIRECTED to terminate all motions and deadlines, enter judgment, and close this case.
DONE and ORDERED.