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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MYLES STOKES,1

Petitioner,

v. Case No. 3:09cv338/WS/MD

STATE OF FLORIDA DEPARTMENT

OF CORRECTIONS 

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. (Doc. 1). Respondent has filed a motion to dismiss the petition as an

unauthorized second or successive petition. (Doc. 13). Petitioner has not

responded, although given the opportunity to do so. (Doc. 14). The matter is

referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration,

it is the opinion of the undersigned that no evidentiary hearing is required for the

disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the

opinion of the undersigned that the pleadings and attachments before the court

show that this petition is a “second or successive” habeas corpus application, and

that petitioner has failed to obtain an order in the United States Court of Appeals for

Petitioner identifies his middle initial as “N” and signs his pleadings “Myles N. Stokes.” (Doc.

1

1). He identifies his Florida Department of Corrections (“DC”) number as 017411, and is challenging

convictions imposed by the Circuit Court of Escambia County, Florida. (Id.). The documents

submitted by respondent reveal that petitioner’s actual name is “Myles A. Stokes.” (Doc. 13, Ex. B).

That is the name associated with petitioner’s DC number and convictions. One Miles N. Stokes, DC

number M24304, was released from custody in 2004. (Doc. 13, Ex. A). His convictions arose out of

Broward County, Florida. (Id.).
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the Eleventh Circuit (“Eleventh Circuit”) authorizing this court to consider the

petition. As such, this action should be dismissed. 

BACKGROUND AND PROCEDURAL HISTORY

In June of 1983, petitioner was convicted of aggravated assault, kidnaping,

armed robbery with a deadly weapon, and two counts of sexual battery with the use

of a deadly weapon and physical force likely to cause serious physical injury, in the

Circuit Court of Escambia County, Florida. (Doc. 1 at 1; Doc. 13 Ex. C). He was 2

sentenced to life imprisonment. (Id.). 

In 1986, petitioner filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 in this court. The case was assigned Case Number PCA 86-

04288/WEA/SMN. (Ex. C). Petitioner challenged the same conviction on grounds of

insufficient evidence, double jeopardy and ineffective assistance of counsel. (Id.). 

The magistrate judge, Susan Novotny, held an evidentiary hearing on the ineffective

assistance claim. On July 14, 1987, she entered a Report and Recommendation that

the petition be denied on the merits. (Id.). On September 10, 1987, Senior District

Judge Winston Arnow adopted the Report and Recommendation and denied relief. 

(Ex. D). Judgment was entered accordingly. (Ex. E). 

Twenty-two years later, on August 11, 2009, petitioner filed the instant § 2254

petition. The petition challenges the same conviction and sentence on the grounds

that at the time of petitioner’s trial, both the State and petitioner’s counsel were

aware of DNA test results indicating that petitioner could neither be identified as the

perpetrator nor eliminated, yet neither the State nor petitioner’s counsel introduced

the results at trial. Petitioner further complains that the State destroyed the

evidence in 1986, instead of waiting ten years. (Doc. 1 at 4-6). Petitioner appears to

acknowledge his previous habeas corpus challenge, but contends he did not raise

Hereafter, all references to exhibits will be to those attached to Doc. 13, unless otherwise

2

noted.

Case No: 3:09cv338/WS/MD
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the instant claim because he was “blind to laws and afread [sic] of inmates helps

[sic],” and because he did not learn of the test results or that the evidence had been

destroyed until after the evidentiary hearing before Magistrate Judge Novotny. (Id.

at 3, 4). 

DISCUSSION

“Second or Successive” Habeas Corpus Application

Title 28 U.S.C. § 2244(b)(3)(A) provides: “Before a second or successive

[habeas corpus] 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.” See also Rule 9, Rules Governing Section 2254 Cases

(2005); 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 jurisdiction to consider a

th

“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); Fugate v. Dep’t of Corrections, 301

F.3d 1287, 1288 (11 Cir. 2002); Hill v. Hopper, 112 F.3d 1088, 1089 (11 Cir. 1997). th th

Here, the record establishes that the instant application is second or

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

Eleventh Circuit in order to file this petition. This failure operates as a jurisdictional

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

Certificate of Appealability

As amended effective December 1, 2009, Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts provides that “[t]he district

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

adverse to the applicant.” If a certificate is issued, “the court must state the specific

Case No: 3:09cv338/WS/MD
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issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule

11(a), Rules Governing Section 2254 Cases. A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules

Governing Section 2254 Cases.

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 there is an objection to this recommendation by either party, that

party may bring this argument to the attention of the district judge in the objections

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 13) be GRANTED, and this §

2254 petition (doc. 1) be DISMISSED WITHOUT PREJUDICE.

2. That the clerk be directed to close the 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 10 day of May, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 3:09cv338/WS/MD
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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: 3:09cv338/WS/MD