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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:20-cv-22077-GAYLES

MARTIN L. MCCRAY,

Plaintiff,

v.

STATE OF FLORIDA,

HARVEY RUVIN, and

CLERK OF COURT,

Defendants.

_______________________/

ORDER DISMISSING CASE

THIS CAUSE comes before the Court on a sua sponte review of the record. On May 19, 

2020, pro se Plaintiff Martin L. McCray filed a pleading titled “Rule 60(B)(2)(3)(4)(6)(d)(3) 

Manifest Injustice Fraudulent Written Judgment and Sentence Entitlement to Emergency 

Discharge from Custody” (the “Petition”) in which he seeks to vacate a state court judgment. See 

[ECF Nos 1 & 5]. Plaintiff attacks the constitutionality of his 1991 conviction and sentence that 

was entered in Miami-Dade County Circuit Court in case no. F90-38756. [ECF No. 1]. 

The Court has reviewed the Petition and the record and is otherwise fully advised. The

Court also takes judicial notice of a related habeas application that Plaintiff previously filed with 

this Court in McCray v. State of Florida, case no. 05-CV-22856-HIGHSMITH, as well as the 

records and the filings contained therein. See Fed. R. Evid. 201. No order to show cause has been 

issued in this case because, for the reasons discussed below, the Court finds that the Petition, as 

filed, is an unauthorized successive petition that must be dismissed for lack of jurisdiction. 

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Before filing the instant Petition, Plaintiff filed an application for writ of habeas corpus in 

2005, pursuant to 28 U.S.C. § 2254, challenging the same Miami-Dade conviction that he 

challenges here. See 05-CV-22856-HIGHSMITH, [ECF No. 1]. That application was denied on 

the merits as time-barred. See id. [ECF Nos. 37 & 39]. Plaintiff then appealed that denial, and his

appeal was later dismissed. See id. [ECF No. 49].

Rule 60 provides for relief from a judgment or order previously entered but does not 

contemplate relief from state court judgments. See generally Fed. R. Civ. P. 60. The nature of 

Plaintiff’s claims in the instant Petition are, in all relevant respects, those which Plaintiff could 

have raised in his prior § 2254 petition. And the Supreme Court has made clear that “[u]sing Rule 

60(b) to present new claims for relief from a state court’s judgment of conviction–even claims 

couched in the language of a true Rule 60(b) motion–circumvents [the Antiterrorism and Effective 

Death Penalty Act of 1996’s] requirement that a new claim be dismissed unless it relies on either 

a new rule of constitutional law or newly discovered facts.” Gonzalez v. Crosby, 545 U.S. 524, 

531 (2005) (citing 28 U.S.C. § 2244(b)(2)). Because the Petition seeks relief from a criminal state 

court judgment that was the subject of Plaintiff’s prior § 2254 application, the Court construes it 

as a successive § 2254 petition. See, e.g., Echemendia v. Florida Dep’t of Corr., 716 F. App’x 914, 

916–17 (11th Cir. 2017) (finding that the district court properly construed the plaintiff’s motion as 

an unauthorized successive petition). 

“Before a second or successive application permitted by this section 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). “A motion in the court of 

appeals for an order authorizing the district court to consider a second or successive application 

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shall be determined by a three-judge panel of the court of appeals” and may be granted “only if 

[the assigned panel of judges] determines that the application makes a prima facie showing that 

the application satisfies the requirements of [28 U.S.C. § 2244(b)(2)].” 28 U.S.C. § 2244(b)(3)(B) 

and (C). Accordingly, unless a petitioner presents such authorization from the Eleventh Circuit 

Court of Appeals, the Court lacks jurisdiction to consider a successive petition. See Burton v. 

Stewart, 549 U.S. 147, 153 (2007) (holding that the district court was without jurisdiction to 

entertain an unauthorized second or successive petition). 

Here, the record nowhere indicates that Plaintiff has sought, much less obtained, 

authorization from the Eleventh Circuit Court of Appeals to file a successive petition as required 

by 28 U.S.C. § 2244(b)(3). Therefore, the Petition must be dismissed for lack of jurisdiction. 

Finally, no certificate of appealability shall issue in this case. A prisoner seeking to appeal 

a district court’s final order denying his petition for writ of habeas corpus has no absolute 

entitlement to appeal but must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) 

(“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken 

to the court of appeals from–the final order in a habeas corpus proceeding in which the detention 

complained of arises out of process issued by a State Court[.]”).

The Court may issue a certificate of appealability “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Where a district court 

has rejected an applicant’s constitutional claims on the merits, the applicant must demonstrate that 

“reasonable jurists would find the district court’s assessment of the constitutional claims debatable 

or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). However, when the district court has 

rejected a habeas petition on procedural grounds, the applicant must show that “jurists of reason 

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would find it debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court was correct in its 

procedural ruling.” Id. Upon consideration of the record as a whole, the Court finds that Plaintiff 

has not demonstrated that jurists of reason would find it debatable whether the Court is correct in 

its procedural ruling. Therefore, no certificate of appealability shall issue. 

Based on the foregoing, it is ORDERED AND ADJUDGED that:

1. Plaintiff’s pleading, titled “Rule 60(B)(2)(3)(4)(6)(d)(3) Manifest Injustice 

Fraudulent Written Judgment and Sentence Entitlement to Emergency Discharge 

from Custody,” [ECF No. 1], which the Court construes as a successive petition for 

habeas corpus is DISMISSED for lack of jurisdiction;

2. No certificate of appealability shall issue; and 

3. The case shall be CLOSED. 

DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of August, 2020. 

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

cc: Martin L. McCray (pro se)

403163 Santa Rosa Correctional Institution Annex

Inmate Mail/Parcels

5850 East Milton Road

Milton, FL 32583

Noticing 2254 SAG Miami-Dade/Monroe

Email: CrimAppMIA@MyFloridaLegal.com

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