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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOHN EDWARD PARKER,

Petitioner,

vs. Case No.: 3:10cv424/MCR/EMT

EDWIN G. BUSS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner commenced this action by filing a petition for writ of habeas corpus under 28

U.S.C. § 2254 (Doc. 1). He subsequently filed an amended petition and paid the filing fee (Docs.

6, 11). Respondent filed a motion to dismiss the petition as an unauthorized successive petition

(Doc. 15). Petitioner filed a response in opposition to the motion (Doc. 17). 

This 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

petition should be dismissed as an unauthorized second or successive petition.

I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

Following a jury trial in the Circuit Court in and for Escambia County, Florida, Petitioner

was convicted of robbery with a deadlyweapon and trespass of an occupied structure or conveyance

(Doc. 6 at 1–2; see also Doc. 15, Ex. B). On November 6, 2002, he was sentenced as a prison

releasee reoffender to life imprisonment on the robbery count and time served on the trespass count

(Doc. 6 at 1; Doc. 15, Ex. B). Petitioner did not appeal the judgment (Doc. 6 at 2). 

Respondent contends, and Petitioner acknowledges, that Petitioner previously filed a § 2254

petition in this court challenging the validity of his conviction and sentence (Doc. 15 at 1–2, Ex. C;

Doc. 6 at 3). The records of this court confirm that Petitioner previously filed a federal habeas

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petition in this court. See Parker v. McDonough, 3:05cv243/MCR/MD, Doc. 1, Petition (N.D. Fla.

July 1, 2005). In that petition, Petitioner challenged the same conviction which he now challenges. 

See id. The State filed a motion to dismiss the petition as untimely and submitted portions of the

state court record in support of its motion. See id., Doc. 26, Motion to Dismiss (N.D. Fla. Mar. 1,

2006). Following a Report and Recommendation, the petition in CaseNo. 3:05cv243/MCR/MD was

dismissed on May 24, 2006, as untimely (see Doc. 15, Exs. C, D). See id., Doc. 30, Report and

Recommendation (N.D. Fla. May 8, 2006); Doc. 32, Order (N.D. Fla. May 24, 2006); Doc. 33,

Judgment (N.D. Fla. May 24, 2006). Petitioner appealed the decision to the Eleventh Circuit Court

of Appeals. See id., Doc. 34, Notice of Appeal (N.D. Fla. July 3, 2006); Doc. 35, Application for

Certificate of Appealability (N.D. Fla. July 3, 2006). The Eleventh Circuit dismissed the appeal on

August 21, 2006 for lack of jurisdiction. See id., Doc. 43, Order. 

In the instant habeas petition, Petitioner again challenges his 2002 conviction and life

sentence, asserting four claims of alleged constitutional errors that occurred at trial (Doc. 6).

II. ANALYSIS

Pursuant to 28 U.S.C. § 2244(b)(3)(A), “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.” See 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 (11th Cir. 1997). The

instant petition challenges the legality of the same state court judgment that was the subject of the

first § 2254 action filed by Petitioner in 2005, Case No. 3:05cv243/MCR/MD. Furthermore,

Petitioner’s 2005 petition qualified as a first petition for the purpose of determining successor status

because the court dismissed it with prejudice as untimely. SeeVillanueva v. United States, 346 F.3d 1

Some types of collateral challenges do not render subsequent habeas petitions “second or successive.” See

1

McGiver v. United States, 307 F.3d 1327, 1332 (11th Cir. 2002) (successful motion to file out-of-time notice of appeal

does not render subsequent collateral proceedings “second or successive”); Slack v. McDaniel, 529 U.S. 473, 486–87,

120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (dismissal of petitioner’s § 2254 claims for failure to exhaust state remedies

does not render subsequent petition second or successive); Stewart v. Martinez-Villareal, 523 U.S. 637, 643–44, 118

S. Ct. 1618, 140 L. Ed. 2d 849 (1998) (petitioner’s Ford v. Wainwright claim that he is not competent to be executed

should not be treated as “second or successive” petition, despite the fact that it had been raised in a prior petition and

dismissed as unripe); Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997) (prior habeas action challenging only the

constitutionality of state’s system of processing indigent criminal appeals does not render later § 2254 petition

successive); Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996) (§ 2254 petition dismissed for failure to pay

Case No.: 3:10cv424/MCR/EMT

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55, 59–61 (2d Cir. 2003) (habeas petition or § 2255 motion that is properly dismissed as time-barred

under AEDPA constitutes an adjudication on the merits for successive purposes); Altman v. Benik,

337 F.3d 764, 766 (7th Cir. 2003) (a prior untimely petition counts as a first petition because a

statute of limitations bar is not a curable technical or procedural deficiency but rather operates as an

irremediable defect barring consideration of the petitioner’s substantive claims). Therefore, the

instant petition is second or successive. Additionally, Petitioner does not allege that he obtained the

requisite permission from the Eleventh Circuit Court of Appeals prior to filing this petition. This

failing operates as a jurisdictional bar that precludes this district court’s consideration of the merits

of the instant petition. See 28 U.S.C. § 2244(b)(3)(A); Fugate v. Dep’t of Corrections, 310 F.3d

1287, 1288 (11th Cir. 2002). For this reason, this case should be dismissed for lack of jurisdiction.

III. 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. 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, the

undersigned recommends that the district 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.” Thus, 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. 15) be GRANTED.

required filing fees not counted as first petition for purpose of determining successor status).

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2. That this habeas action be DISMISSED for lack of jurisdiction. 

3. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 28 day of June 2011. th

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. 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

objections shall be served upon the magistrate judge and all 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 (11th Cir. 1988).

Case No.: 3:10cv424/MCR/EMT

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