United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Mitchell petitions this Court for a writ of habeas corpus
under 28 U.S.C. § 2254. Doc. 1. That petition was denied
as untimely on initial screening, docs. 5 & 7, but
remanded upon appeal for further development of the record.
Doc. 12 (mandate of the Eleventh Circuit). The Government
moves to dismiss the petition as successive, noting that this
Court has previously denied relief in Mitchell v.
Smith, CV400-067 (S.D. Ga. July 2001). Doc. 16. The
Government is correct. Because petitioner has neither sought nor
received permission from the Eleventh Circuit to pursue a
successive § 2254 petition, this Court lacks
jurisdiction to consider it.
a second or successive application permitted by this section
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). District courts “lack[ ]
jurisdiction to decide a second or successive petition filed
without [the court of appeals'] authorization.”
Insignares v. Sec'y, Fla. Dep't of Corr.,
755 F.3d 1273, 1278 (11th Cir. 2014). Consequently,
“[a] district court must dismiss a second or
successive petition, without awaiting any response from the
government, unless the court of appeals has given approval
for its filing.” Smalls v. St. Lawrence, 2012
WL 1119766 at * 1 (S.D. Ga. Feb. 27, 2012).
(1) this is Mitchell's second § 2254 petition, and
(2) he never sought permission from the court of appeals
before filing, “this Court is not at liberty to
consider it.” Id. Accordingly, his petition
should be DISMISSED. Further, because it is
“indisputably time-barred, ” Guenther v.
Holt, 173 F.3d 1328, 1331 (11th Cir. 199), even
construing petitioner's application as a motion for
§ 2244(b)(3)(A) authorization, transfer to the Eleventh
Circuit for consideration is unwarranted. 28 U.S.C. §
2244(b)(3)(A) & 28 U.S.C. § 1631.
was sentenced to 35 years' imprisonment for armed robbery
and aggravated assault with intent to rape in 1984, and moved
for state habeas relief over a decade later on April 9, 1997.
CV400-067, doc. 8 at 2 (he was sentenced to fifteen years for
aggravated assault with intent to rape on January 12, 1984
and twenty years for armed robbery on February 14, 1984).
After an evidentiary hearing in 1998, habeas relief was
denied on the merits on February 8, 1999. Id. The
Georgia Supreme Court denied petitioner's application for
discretionary appeal initially and on reconsideration in
January and February 2000. Id. Petitioner filed his
first motion for federal habeas relief a month later, which
was denied on the merits and affirmed on appeal in 2001.
CV400-067 at docs. 12 & 17. Nothing in this now-developed
record, doc. 12 (mandate of the Eleventh Circuit remanding
for further development to determine timeliness) changes the
Court's prior finding that his instant petition is
untimely. See docs. 5 & 7.
Mitchell was sentenced prior to the passing of the
Anti-Terrorism and Effective Death Penalty Act (AEDPA) (which
was effective as of April 24, 1996), his one-year deadline
didn't fall a year after sentencing. 28 U.S.C. §
2244(d)(2) (requiring petitions to be filed within one year
after their convictions became final). Instead, he was
required to file any habeas petition by April 24, 1997 --
“one year from the date of enactment” of the
AEDPA. Helton v. Sec'y for Dep't of Corr.,
259 F.3d 1310, 1312 (11th Cir. 2001) (citing Wilcox v.
Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir.
1998) (prisoners whose convictions became final before
AEDPA's effective date must file their petition
“within a reasonable time -- within one year from
AEDPA's effective date.”)).
timely filed his state petition on April 9, 1997, and the
limitations period was thus tolled under § 2244(d)(2)
until he had a final decision on his petition -- back in
2000. When Mitchell filed his first motion for federal habeas
relief a month later, approximately eleven months remained on
his federal clock. And when the district court dismissed his
petition back in 2001, that time remained available. He thus
had “ample time to seek from [the Court of Appeals] the
§ 2244(b)(3) authorization and refile his § 2254
application, prior to the [ ] expiration of the limitations
period, had he chosen to do so.” Guenther, 173
F.3d at 1331. His filing of this application, nearly two
decades later, is clearly untimely. Transfer to the Eleventh
Circuit for consideration of his reconstrued petition is thus
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
the Certificate of Appealability (COA) standards, which are
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); see Alexander
v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving
sua sponte denial of COA before movant filed a
notice of appeal). 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. §
REPORTED AND RECOMMENDED.
 Petitioner concedes that he did indeed
file an application for habeas review “in a timely
manner many years ago” but asserts that he never
received a ruling. Doc. 17 at 2. Petitioner is lying.
See CV400-067, docs. 8 (report and recommendation
(R&R) denying habeas relief), 10 (Mitchell's
objection to the R&R), 11 & 12 (order adopting
R&R), 15 (Mitchell's appeal to the Eleventh Circuit),
17 (Order of the Eleventh Circuit affirming denial of habeas
 Petitioner, of course, may
independently apply for authorization to file a successive
petition, and with this Court's jurisdiction thus
invoked, he may return to the ...