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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

FRANK G. MELTON,

Petitioner,

v. Case No. 5:09cv293/SPM/MD

STATE OF FLORIDA 

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), and petitioner’s motion to transfer his petition, pursuant to 28

U.S.C. § 1631, to the United States Court of Appeals for the Eleventh Circuit (doc.

14). In support of his motion, petitioner states that the instant petition is a “second

or successive” habeas corpus application; that he must therefore obtain an order

from the Eleventh Circuit authorizing this court to consider the petition; and that

transfer rather than dismissal is warranted (doc. 14). After careful consideration, it

is the opinion of the undersigned that this case should be dismissed rather than

transferred. 

BACKGROUND AND PROCEDURAL HISTORY

On March 31, 2004, petitioner was found guilty by jury verdict of principal to

home invasion robbery with a firearm in the Circuit Court of Bay County, Florida. 

(Doc. 1, pp. 1-2). He was sentenced to fifteen years imprisonment. (Id.). 

On December 4, 2006, 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
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3:06cv545/MCR/EMT. Petitioner challenged his conviction on grounds of 1

insufficient evidence and ineffective assistance of counsel. (Case Number

3:06cv545, Doc. 1). The State responded. (Id., Doc. 11). On July 31, 2007, the

magistrate judge entered a Report and Recommendation recommending that the

petition be denied on the merits. (Id., Doc. 15). The district judge adopted the

Report and Recommendation on October 4, 2007. (Id., Doc. 19). Petitioner did not

seek a certificate of appealability. 

Almost two years later, on August 24, 2009 petitioner filed the instant § 2254

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

that the jury instructions were confusing, there was insufficient evidence that

petitioner possessed a firearm, and that he was wrongly convicted as a principal.

(Doc. 1). Petitioner admits that the instant petition is a “second or successive”

application within the meaning of 28 U.S.C. § 2244. (Doc. 14).

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

The court takes judicial notice of its own records in Melton v. McDonough, Case Number

1

3:06cv545/MCR/EMT.

Case No: 5:09cv293/SPM/MD
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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

The instant application is second or successive, and the record establishes 

that petitioner has 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. 

Transfer versus Dismissal

Title 28 U.S.C. § 1631 provides:

Whenever a civil action is filed in a court as defined in section

610 of this title or an appeal, including a petition for review of

administrative action, is noticed for or filed with such a court and that

court finds that there is a want of jurisdiction, the court shall, if it is in

the interest of justice, transfer such action or appeal to any other such

court in which the action or appeal could have been brought at the time

it was filed or noticed, and the action or appeal shall proceed as if it

had been filed in or noticed for the court to which it is transferred on

the date upon which it was actually filed in or noticed for the court from

which it is transferred.

On its face, this “second or successive” habeas corpus application appears barred

by the one year statute of limitations provided by 28 U.S.C. § 2244. Thus, it does not

appear that the interest of justice warrants a direct transfer of the case to the

Eleventh Circuit. See generally Guenther v. Holt, 173 F.3d 1328 (11 Cir. 1999). th

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,

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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.

Accordingly, it is respectfully RECOMMENDED:

1. That petitioner’s motion to transfer this case to the Eleventh Circuit (doc.

14) be DENIED.

2. That this § 2254 petition (doc. 1) be DISMISSED WITHOUT PREJUDICE.

3. 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.

4. That a certificate of appealability be DENIED.

At Pensacola, Florida this 13 day of January, 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: 5:09cv293/SPM/MD