FRANKLIN
v.
DIXON
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The court held that a habeas petition is an unauthorized successive petition if the petitioner fails to raise a claim with a legitimate excuse and has not obtained leave from the Eleventh Circuit.
Petitioner filed a third habeas corpus petition challenging a state court judgment, raising a new issue about a 'botched' plea deal. The magistrate ju…
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Petitioner's petition for writ of habeas corpus be dismissed as an unauthorized petition challenging his judgment in state court case number 1995–CF-131. Petitioner has filed objections (ECF No. 6) to the report and recommendation.
In his objections, Petitioner suggests that his current habeas petition—his third such petition challenging the same state-court judgment—should not be dismissed because he is now raising an issue that was not raised previously, namely a "botched" plea deal. A motion is “second or successive" when the
"petitioner could have raised his or her claim for relief in an earlier filed motion, but without a legitimate excuse, failed to do so." Pajes-Lastra v. United States, Case No. 22-10226, 2022 WL 2800214, at *1 (11th Cir. July 18, 2022). Here, because Petitioner has not shown a “legitimate excuse” for his failure to previously raise the issue he now raises, and because Petitioner has not been granted leave by the Eleventh Circuit to file a second or successive habeas corpus petition, this court lacks the authority to consider Petitioner's current petition.
Accordingly, it is ORDERED:
1. The magistrate judge's report and recommendation (ECF No. 3) is hereby ADOPTED and incorporated by reference into this order.
2. Petitioner's § 2254 petition for writ of habeas corpus is DISMISSED as an unauthorized successive petition over which this court lacks jurisdiction.
3. The clerk shall enter judgment stating: "All claims are dismissed for lack of jurisdiction.”
DONE AND ORDERED this 12th day of January 2024.
s/ William Stafford WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE
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Citator
Cited By
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Franklin v. Dixon, 2022 WL 2800214 (N.D. Fla. 2024)…al. A motion is “second or successive” when the Page 2 of 2 “petitioner could have raised his or her claim for relief in an earlier filed motion, but without a legitimate excuse, failed to do so.” Pajes-Lastra v. United States, Case No. 22–10226, 2022 WL 2800214, at *1 (11th Cir. July 18, 2022). Here, because Petitioner has not shown a “legitimate excuse” for his failure to previously raise the issue he now raises, and because Petitioner has not been granted leave by the Eleventh Circuit to file a second o…
Authorities Cited
- Franklin v. Dixon, 2022 WL 2800214 (N.D. Fla. 2024)