Opinion
Case No. 8:11-CV-950-T-30MAP.
May 9, 2011
ORDER
Petitioner, an inmate of the Florida penal system proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging convictions entered by the Sixth Judicial Circuit Court, Pinellas County, Florida, in case no. 96-2658 (Dkt. 1). Petitioner also filed an affidavit of indigency in which he asks to proceed in this action in forma pauperis (Dkt. 2).
Because Petitioner filed his request for federal habeas relief after the enactment date of the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), the petition is governed by the provisions thereof. See Wilcox v. Singletary, 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). The AEDPA contains several habeas corpus amendments, one of which established a "gatekeeping" mechanism for the consideration of "second or successive habeas corpus applications" in the federal courts, see 28 U.S.C. § 2244(b). See Stewart v. Martinez-Villareal, 523 U.S. 637, 641-42 (1998). Section 2244(b) provides, in pertinent part, that before a second or successive application for habeas corpus relief is "filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
Petitioner has previously sought federal habeas relief in this Court regarding the convictions he challenges in this action. See Dudley v. Moore, 8:97-cv-2978-T-26C (M.D. Fla. 1997) (denied October 25, 2000). Clearly this is a second or successive petition.
In his petition, Petitioner admits having previously filed a petition in federal court regarding the convictions he challenges in this petition (Dkt. 1 at p. 11).
Therefore, pursuant to 28 U.S.C. 2244(b)(3), Petitioner must seek and obtain authorization from the Eleventh Circuit Court of Appeals prior to initiating this action. See Medina v. Singletary, 960 F.Supp. 275, 277-78 (M.D. Fla. 1997) (and cases cited therein). Petitioner has not shown that he has applied to the court of appeals for an order authorizing this Court to consider his application. This case will be dismissed without prejudice to allow Petitioner the opportunity to seek said authorization.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's petition (Dkt. 1) is DISMISSED without prejudice.
2. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for second or successive habeas corpus petitions under 28 U.S.C. § 2244(b).
3. The Clerk shall terminate any pending motions, and close this case.DONE and ORDERED in Tampa, Florida.