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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

STEVEN GILCHRIST,

Petitioner,

v. Case No. 3:10cv66/MCR/MD

WALTER MCNEIL 

Respondent.

______________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Before the court is an amended petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254 (doc. 5), and petitioner’s motion for extension of time

(doc. 7). For the reasons that follow, the undersigned concludes that petitioner’s

motion should be denied and this action dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner is challenging his 1997 conviction for sale of cocaine entered in the

Circuit Court of Escambia County, Florida. He claims he is “actually innocent” of the

crime, because the State’s key witness recanted his trial testimony. (Doc. 5).

Petitioner admits on the petition form that he previously filed a § 2254 petition in

federal court regarding the validity of his state court confinement. (Id., p. 3). In

response to this court’s order (doc. 6) directing him to show cause why his petition

should not be dismissed as an unauthorized second or successive petition,

petitioner has moved for an extension of time, explaining: “Petitioner would beg the

courts not to dismiss his petition until he at least tries to get permission from the

Eleventh Circuit Court of Appeals; because Petitioner was not aware of title [sic] 28
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U.S.C. § 2244(b)(3)(A). Petitioner begs the court to give him a chance to prove his

innocents [sic].” (Doc. 7). 

DISCUSSION

“Second or Successive” Habeas Corpus Application

Title 28 U.S.C. § 2244 provides: “Before a second or successive application

. . . 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) (emphasis added); see also Rule 9, Rules Governing § 2254

Cases, 28 U.S.C. foll. § 2254; Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 166

L.Ed.2d 628 (2007); Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 2337, 136 L.Ed.2d

346 (1996); In re Medina, 109 F.3d 1560 (11 Cir. 1997). A district court lacks th

jurisdiction to consider a “second or successive” habeas corpus petition that has

not been previously authorized by an appellate court. Burton, 127 S.Ct. at 796, 799

(holding that district court lacked jurisdiction to entertain habeas petition since

prisoner did not obtain order authorizing him to file second petition); Hubbard v.

Campbell, 379 F.3d 1245 (11 Cir. 2004) (holding that district court was obliged to th

dismiss second or successive § 2254 petition for lack of subject matter jurisdiction,

where petitioner failed to obtain the Eleventh Circuit’s permission to file it); Fugate

v. Dep’t of Corrections, 301 F.3d 1287, 1288 (11 Cir. 2002) (same). th

The court takes judicial notice of its own records which confirm that on 1

January 26, 2000, petitioner filed a § 2254 petition in this court challenging the same

conviction and sentence. (See Gilchrist v. Moore, Case Number 3:00cv31/LC/MD). 

The petition was denied on July 26, 2000, on the grounds that petitioner’s claims

were procedurally defaulted. (Id., docs. 10, 12 & 13). Petitioner’s appeal was

dismissed on October 16, 2000 for want of prosecution. (Id., doc. 24). On May 27,

The court has the authority to take judicial notice of its own documents. See United States

1

v. Rey, 811 F.2d 1453, 1457 n. 5 (11 Cir. 1987) (“A court may take judicial notice of its own records

th

and the records of inferior courts.”).

Case No: 3:10cv66/MCR/MD
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2001, petitioner filed another § 2254 petition in this court challenging the same

conviction andsentence. (See Gilchrist v. Moore, Case Number 3:01cv130/RV/SMN). 

The petition was dismissed on July 6, 2001 as an unauthorized second or

successive petition. (Id., docs. 10, 12 & 13). 

The record therefore establishes that the instant habeas petition is second or

successive, and that petitioner failed to obtain the requisite authorization from the

Eleventh Circuit before filing the petition. This failure operates as a jurisdictional

bar that precludes the district court’s consideration of the merits of the petition. As

petitioner did not have the requisite permission at the time of filing, a stay or

extension should not be granted, and this case should be dismissed without

prejudice to allow petitioner the opportunity to obtain such authorization before

filing a petition in this court.

Certificate of Appealability

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he

district court must issue or deny a certificate of appealability when it enters a final

order adverse to the applicant,” and if a certificate is issued “the court must state

the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues a

certificate of appealability. § 2254 Rule 11(b).

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595,

1603-04, 146 L.Ed.2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” If petitioner files an objection to this recommendation, he may bring

this argument to the attention of the district judge in his objections.

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Accordingly, it is ORDERED:

Petitioner’s motion for extension of time (doc. 7) is DENIED. 

And it is respectfully RECOMMENDED:

1. That the amended § 2254 petition (doc. 5) be DISMISSED WITHOUT

PREJUDICE for lack of jurisdiction.

2. That the clerk be directed to close this file and send petitioner the Eleventh

Circuit’s form application for leave to file a second or successive petition.

3. That a certificate of appealability be DENIED.

At Pensacola, Florida this 11 day of May, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv66/MCR/MD