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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOHN B. HOLLAND,

Petitioner,

v. Case No. 3:10cv410/MCR/MD

WALTER MCNEIL 

Respondent.

______________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed under 28 U.S.C.

§ 2254 (doc. 1), and petitioner’s motion for leave to proceed in forma pauperis (doc.

2). For the limited purpose of dismissing this action, leave to proceed in forma

pauperis will be granted. 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 the Eleventh Circuit (“Eleventh

Circuit”) authorizing this court to consider the petition. Therefore, this action should

be dismissed. 
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DISCUSSION

In this habeas action, petitioner challenges his 1993 convictions for two

counts of sexual battery of child under the age of twelve, two counts of lewd and

lascivious acts, and two counts of promoting sexual performance by a child, entered

in the Circuit Court of Escambia County, Florida. (Doc. 1, p. 1). He claims he is in

custody in violation of due process and equal protection, arguing, inter alia, that the

state court in his direct appeal “overlooked the fact that the transcript of the trial

proceeding substantiate[s] that an essential element of the crime as charged was

not established as a matter of law or as a matter of fact, evidencing that the jurors’

guilty verdict was predicated upon compassion, due to the nature of the crime, and

not upon competent evidence.” (Id., p. 3 ¶14). Petitioner admits on the petition form

that he previously filed a § 2254 petition in federal court regarding the validity of his

convictions. (Id., p. 3 ¶ 13). 

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

January 5, 1998, petitioner filed a § 2254 petition in this court challenging the same

judgment of conviction. (See Holland v. Singletary, Case Number 3:98cv3/RV/SMN). 

The petition was denied on the merits on March 3, 2000. (Id., docs. 14, 18 & 19). The

Eleventh Circuit denied a certificate of appealabilty on July 5, 2000. (Id., doc. 42). 

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

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: 3:10cv410/MCR/MD
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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 Eleventh Circuit’s permission to file it); Fugate v.

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

The record 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. 

Therefore, this action must be dismissed. 

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.

Case No: 3:10cv410/MCR/MD
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Accordingly, it is ORDERED:

Petitioner’s motion for leave to proceed in forma pauperis (doc. 2) is

GRANTED for the limited purpose of dismissing this action.

And it is respectfully RECOMMENDED:

1. That the § 2254 petition (doc. 1) 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 27th day of October, 2010.

/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: 3:10cv410/MCR/MD