Miller v. Sec'y, Dep't of Corr., Case No. 8:20-cv-1130-T-60AEP

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtTOM BARBER UNITED STATES DISTRICT JUDGE
PartiesARSELES DEVON MILLER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
Decision Date20 November 2020
Docket NumberCase No. 8:20-cv-1130-T-60AEP

ARSELES DEVON MILLER, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:20-cv-1130-T-60AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

November 20, 2020


ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS SECOND OR SUCCESSIVE

Before the Court is Respondent's "Motion to Dismiss Petition for Lack of Jurisdiction." (Doc. 8) After reviewing the motion and Miller's response (Doc. 10), the Court finds as follows:

A district court may both preliminarily review a petition for writ of habeas corpus and summarily dismiss the petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief. . . ." Rule 4, Rules Governing Section 2254 Cases. Miller's petition challenges his state court convictions for cocaine trafficking and delivery of cocaine. (Doc. 1 at 1) Miller filed an earlier petition challenging these same convictions. Petition, Miller v. Sec'y, Dep't Corrs., No. 8:08-cv-2530-T-17AEP (M.D. Fla.), ECF No. 1. The district court denied the earlier petition on the merits and denied a certificate of appealability. Order, Id., ECF No. 13.

Page 2

Because the petition in this case challenges the same state court judgment that Miller challenged in the earlier petition and raises ineffective assistance of counsel claims that he could have raised in the earlier petition (Doc. 1 at 5-22), the petition is "second or successive." 28 U.S.C. § 2244(a); Magwood v. Patterson, 561 U.S. 320, 338-39 (2010).

The district court lacks jurisdiction to review the "second or successive" petition until the court of appeals grants Miller permission to file the petition. 28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147, 157 (2007) (". . . Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a 'second or successive' petition challenging his custody, and so the District Court was without jurisdiction to entertain it."); Holland v. Sec'y, Fla. Dep't Corrs., 941 F.3d 1285, 1287 (11th Cir. 2019) ("Holland has already filed two habeas petitions in federal court. The first of those petitions was denied on the merits. That means any later petition — containing claims, like the ones here, that could have been raised when Holland filed his initial Section 2254 petition — that Holland filed is considered 'successive' and must meet the requirements set out in 28 U.S.C. § 2244(b).").1

In the new petition, Miller contends that he challenges a new amended judgment entered on November 21, 2018. (Doc. 1 at 1) The state court granted Miller's motion to correct his sentence in part and awarded him additional credit for

Page 3

pretrial detention. (Doc. 8-2 at...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT