Opinion
Civil Action 5:24-cv-00111-TES-MSH
04-15-2024
ROOSEVELT LEE, JR., Petitioner, v. ROY ODOM, Respondent.
ORDER OF DISMISSAL
TILMAN E. SELF, III, JUDGE
Pro se Petitioner Roosevelt Lee. Jr., a prisoner at Ware State Prison in Waycross, Georgia, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2011 conviction in the Superior Court of Houston County, Georgia case number 2010-C-44001-L, for Aggravated Assault, False Imprisonment, Burglary, and Hindering a 911 Call. [Doc. 1]. However, a review of this Court's records reveals that Petitioner has filed previous federal habeas corpus petitions challenging this same conviction. See Lee v. Berry, Case No. 5:20-cv-00147-MTT-CHW (M.D. Ga. Apr. 16, 2020) (dismissed pursuant to § 2254(b) as untimely); Lee v. Ward, Case No. 5:22-CV-00203-TES-CHW (M.D. Ga. Aug. 29, 2022) (dismissed as an impermissible successive petition).
“Before a second or successive application [for a writ of habeas corpus] 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); see also Guenther v. Holt, 173 F.3d 1328, 1330 (11th Cir. 1999), cert. denied, 528 U.S. 1085 (2000). The instant Petition is considered successive within the meaning of § 2244(b). See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009) (noting that “[l]ater habeas petitions attacking the same judgment that was attacked in a prior petition tend to be labeled successive and must meet the requirements for authorization under § 2244”). It does not appear, and Petitioner does not allege, that he has received an order from a three-judge panel of the Eleventh Circuit Court of Appeals authorizing this Court to consider a successive habeas petition for this 2011 conviction. Without such an order, this Court lacks jurisdiction to consider the successive claims. See 28 U.S.C. § 2244(b)(3)(A); Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932, 933-34 (11th Cir. 2001) (per curiam).
It is therefore ORDERED that the instant Petition be DISMISSED without prejudice to Petitioner's right to file in the Eleventh Circuit a motion for leave to file a second or successive habeas petition pursuant to § 2244(b)(3). The Clerk is DIRECTED to furnish Petitioner with the application form required by the Eleventh Circuit. Petitioner's pending motion for the appointment of an attorney [Doc. 2] is DENIED as moot.
“[A] dismissal of a successive habeas petition for lack of subject-matter jurisdiction does not constitute a ‘final order in a habeas proceeding' for purposes of 28 U.S.C. § 2253(c). Instead, such a dismissal is a ‘final decision' pursuant to 28 U.S.C. § 1291 and a [Certificate of Appealability] is thus ‘unnecessary.'” Bolin v. Sec'y, Fla. Dep't of Corrs., 628 Fed.Appx. 728, 730 (11th Cir. 2016) (per curiam) (quoting Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (affirming dismissal of successive habeas petition for lack of subjectmatter jurisdiction)). Accordingly, the Court will not address whether Petitioner has met the standards for issuance of a Certificate of Appealability.
SO ORDERED.