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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BILLY D. TURNER,

Petitioner,

v. Case No. 3:10cv439/LC/MD

WALTER A. MCNEIL, 

Respondent.

______________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

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

U.S.C. § 2254. (Doc. 1). Petitioner has also filed two motions for enlargement of

time, or alternatively, to hold the petition in abeyance. (Doc. 3, 9). The first motion

seeks to hold the petition in abeyance pending petitioner’s receipt of state-court

records to support his petition. (Doc. 3). The second motion seeks an extension of

time in which to respond to this court’s order requiring him to submit proof that he

obtained the requisite authorization to file this second or successive § 2254 petition. 

(Doc. 9). After careful consideration, it is the opinion of the undersigned that

petitioner’s motions should be denied and this action dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner challenges his 2000 conviction for capital sexual battery on a child

less than twelve years of age entered in the Circuit Court of Santa Rosa County,

Florida. He claims he is “actually innocent” of the offense and that the state court’s

denial of his motion for postconviction DNA testing was contrary to clearly

established Federal law. (Doc. 1). Petitioner admits on the petition form that he
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previously filed a § 2254 petition in this court challenging the validity of his

confinement. He identifies the case number as 3:04cv234/MCR/MD. (Doc. 1, p. 3;

see also Doc. 9, p. 2). 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, conceding that

he should have obtained the Eleventh Circuit’s authorization before filing his

petition, and requesting a fifty-day extension so that he may prepare the necessary

application and receive a ruling from the Eleventh Circuit. (Doc. 9). 

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); Hubbard v. Campbell, 379 F.3d 1245

(11 Cir. 2004) (holding that district court was obliged to dismiss second or th

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

Case No: 3:10cv439/LC/MD
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The court takes judicial notice of its own records which confirm that on June 1

28, 2004, petitioner filed a § 2254 petition in this court challenging the same

conviction and sentence. (See Turner v. McDonough, Case Number

3:04cv234/MCR/MD). His amended petition was denied on April 26, 2007. (Id., docs.

45, 62 & 63). His appeal was dismissed on June 7, 2007. (Id., doc. 72). 

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

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

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and the records of inferior courts.”).

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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 ORDERED:

Petitioner’s motions for enlargement of time or for a stay (docs. 3, 9) are

DENIED.

And it is respectfully RECOMMENDED:

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

an unauthorized second or successive habeas corpus application.

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 22 day of December, 2010. nd

 /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: 3:10cv439/LC/MD