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Washington v. Holt

United States District Court, S.D. Georgia, Savannah Division

March 23, 2015

MATTHEW WASHINGTON, Petitioner,
v.
WARDEN HOLT, Respondent.

REPORT AND RECOMMENDATION

G.R. SMITH, Magistrate Judge.

This, Matthew Washington's latest 28 U.S.C. § 2254 petition, is a successive petition and therefore must be dismissed. See Washington v. Hall, CV401-069, doe. 10 at 2-3 (S.D. Ga. May 17, 2001) (advising dismissal since his § 2254 petition then was both successive and time-barred, citing Washington v. Newsome, CV485-77 (S.D. Ga. Nov. 17, 1986), and Washington v. Thomas, CV488-114 (S.D. Ga. Mar. 2, 1989)), adopted, doe. 17 (S.D. Ga. June 14, 2001).

Washington must first "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); see 28 U.S.C. § 2255(h) (cross-referencing § 2244 certification requirement). In fact, this Court must dismiss second or successive petitions without awaiting any response from the government, absent prior approval by the court of appeals. Tompkins v. Sec'y, Dep't of Corrs., 557 F.3d 1257, 1259 (11th Cir. 2009). "This is true even if the latter petition purports to raise new claims." Thornton v. Fortniss, 2015 WL 300396 at *2 (N.D. Ala. Jan. 22, 2015); Scott v. United States, ___ F.Supp. 3d ___, 2015 WL 310604 at * 8 (M.D. Fla. Jan. 26, 2015) (government disclosed previously withheld Brady and Giglio violations after first § 2255 motion was litigated; held, second § 2255 motion raising those claims is denied as successive but movant could seek Eleventh Circuit's permission to re-file it).

Because Washington has filed this latest § 2254 motion without prior Eleventh Circuit approval, this Court is without jurisdiction to consider it. Consequently, it should be DISMISSED as successive. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).

SO REPORTED AND RECOMMENDED.


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