Dunn v. Singletary

• Decision Date: 23 February 1999
• Docket Number: No. 97-3062,97-3062
• Citation: 168 F.3d 440
• Parties: 12 Fla. L. Weekly Fed. C 542 Leonard Anthony DUNN, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Department of Corrections; Robert A. Butterworth, Florida Attorney General, Respondents-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 440

168 F.3d 440

12 Fla. L. Weekly Fed. C 542

Leonard Anthony DUNN, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Department of Corrections;

Robert A. Butterworth, Florida Attorney General,

Respondents-Appellees.

No. 97-3062

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Feb. 23, 1999.

Rehearing Denied March 25, 1999.

Leonard Anthony Dunn, Sanderson, FL, pro se.

Lori E. Nelson, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

Leonard Anthony Dunn, a Florida inmate proceeding pro se, appeals the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254. Dunn is currently serving a 50-year sentence for his 1986 conviction on a guilty plea to second-degree murder with a firearm. Because Dunn filed his petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 101 Stat. 1214, the AEDPA governs this case.

The AEDPA provides that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed," 28 U.S.C. § 2244(b)(1), and that a claim presented in a second or successive habeas corpus application that was not presented in a prior application shall be dismissed unless either of two narrow exceptions applies, 28 U.S.C. § 2244(b)(2). Before filing the instant petition, Dunn filed his first § 2254 petition in 1990 ("1990 Petition"). The 1990 Petition was tried in an evidentiary hearing before a magistrate judge, and the magistrate judge recommended the petition be denied. The district court adopted the magistrate's report and recommendation and denied the 1990 Petition.

In the instant case, the district court determined that because of the existence and denial of the 1990 Petition, the instant petition constituted a "second or successive application" due to be dismissed under the AEDPA. The only factual twist in this case that could possibly affect the application of § 2244(b) to this case is that the clerk of court preparing the civil judgment form disposing of the 1990 Petition erroneously indicated that the 1990 Petition was being dismissed "without prejudice." ¹ When an earlier habeas corpus petition was dismissed without prejudice, a later petition is not "second or successive" for purposes of § 2244(b). See, e.g., Carlson v. Pitcher, 137 F.3d 416, 420 (6th Cir.1998) (holding that a habeas petition filed after a previous petition has been dismissed without prejudice to allow the petitioner to pursue state remedies is not "second or successive"); McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir.1997); Camarano v. Irvin, 98 F.3d 44, 46-47 (2d Cir.1996). ²

Here, in contrast, Dunn's 1990 Petition was litigated to a conclusion on the merits. In that case, Dunn claimed that (i) trial counsel had rendered ineffective assistance and (ii) his guilty plea was involuntary, and the magistrate judge determined that both of these claims were substantively without merit. Specifically, the magistrate judge found that Dunn's claim that he was incorrectly advised that by waiving the Florida sentencing guidelines he could make himself eligible for parole review failed the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because counsel made a tactical choice and did not misrepresent the availability of parole, and there was no prejudice to the outcome of the plea process at any rate. As for the involuntary plea claim, the magistrate judge found that Dunn's plea was intelligent, well-informed, and knowing. The magistrate judge's August 28, 1992, recommendation that Dunn's habeas corpus petition be denied was adopted, confirmed, and incorporated by the district court by order of December 9, 1992, over Dunn's objections thereto. Thus, the 1990 Petition was actually denied on the merits. In the order now on appeal, the district court so found, explaining that the indication on the civil judgment form that the 1990 Petition was dismissed without prejudice was a mere scrivener's error.

We hold that the § 2244(b) inquiry as to whether a petition is second or successive must focus on the substance of the prior proceedings--on what actually happened. Allowing Dunn to re-litigate his habeas corpus petition because of a mere scrivener's error would subvert the purpose of the AEDPA's "gatekeeping" provisions: to restrict habeas petitioners from taking multiple bites at the apple. ³ See Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996) ("The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice 'abuse of the writ.' ").

Because the instant petition is "second or successive" within the meaning of § 2244(b), the district court was bound to dismiss it. See 28 U.S.C. § 2244(b)(4). This court has already determined, in its May 7, 1997, denial of application for leave to file a second or successive habeas...