United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Isaac Borders filed an application for federal habeas corpus
relief pursuant to 28 U.S.C. § 2254 challenging his
December 3, 1997, conviction in the Superior Court of
Muscogee County, Georgia. Pet. 1, ECF No. 1. Under the rules
governing habeas corpus actions, district courts are required
to promptly examine every application filed and thereafter
enter a summary dismissal if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.” §
2254 Rules, R. 4; see also McFarland v. Scott, 512
U.S. 849, 856 (1994) (“Federal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its face[.]”); 28 U.S.C. § 2243.
Federal district courts thus have a duty “to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
answer.” § 2254 Rules, R. 4 advisory
part of this obligatory screening, the Court also reviews its
own records to ensure that the petition is not barred, under
28 U.S.C. § 2244, as a second or successive petition.
The relevant statute, § 2244(b)(3)(A), specifically
requires a petitioner to seek and obtain authorization from
the Court of Appeals to file a second or successive habeas
petition in the district court. Without such authorization,
the district court lacks jurisdiction to consider the
petition. See Burton v. Stewart, 549 U.S. 147,
152-57 (2007); Williams v. Chatman, 510 F.3d 1290,
1295 (11th Cir. 2007).
was convicted in the Superior Court of Muscogee County,
Georgia, in 1997. Pet. 1, ECF No. 1. He challenges that state
court conviction claiming ineffective assistance of counsel,
pretrial error, prosecutorial and judicial misconduct,
“fatally defective indictment, ” and numerous
other reasons. Petitioner previously filed a petition for
writ of habeas corpus under § 2254 contesting the same
conviction at issue in the instant petition. See Borders
v. Frazier, 4:08-cv-00023-CDL (M.D. Ga. July 16, 2008).
The Court dismissed that petition as untimely. Report and
Recommendation, Borders, 4:08-cv-00023 (M.D. Ga.
June 30, 2008), ECF No. 14. The Eleventh Circuit Court of
Appeals denied Petitioner's application for a certificate
of appealability, determining that “the district court
correctly dismissed his petition as time-barred.”
Borders v. Frazier, No. 08-14405-B (11th Cir. Dec.
§ 2254 petition is ‘second or successive' if
the petitioner filed a prior § 2254 petition attacking
the same judgment that was denied or dismissed with
prejudice.” Philistin v. Warden, 701 Fed.Appx.
908, 909 (11th Cir. 2017) (per curiam) (citing Guenther
v. Holt, 173 F.3d 1328, 1329 (11th Cir. 2009)).
“[A] dismissal for untimeliness is with
prejudice.” Candelario v. Warden, 592
Fed.Appx. 784, 785 n.1 (11th Cir. 2014) (per curiam).
Consequently, the instant petition for writ of habeas corpus
under § 2254 is impermissibly second or successive
within the meaning of § 2244(b). See e.g. Jordan v.
Sec't, Dep't of Corr., 485 F.3d 1351 (11th Cir.
2007) (finding that district court “properly
dismissed” second-in-time habeas petition under §
2244(b) where first-in-time habeas petition was denied as
untimely); Harris v. Warden, 688 Fed.Appx. 738 (11th
Cir. 2017) (per curiam) (finding that second habeas petition
was barred by § 2244(b) where first habeas petition was
dismissed as untimely); Patterson v. Sec't, Fla.
Dep't of Corr., 849 F.3d 1321 (11th Cir. 2017);
Morris v. Fla. Dep't of Corr., 519 Fed.Appx. 990
(11th Cir. 2013) (per curiam) (finding second-in-time habeas
petition barred by § 2244(b) where first-in-time
petition was “denied as time-barred”); Cook
v. Warden, Macon SP, 686 Fed.Appx. 833 (11th Cir. 2017)
(per curiam) (finding district court lacked jurisdiction to
consider second-in-time habeas petition where first-in-time
petition was “dismissed with prejudice as
authorization, this Court lacks jurisdiction to consider the
instant petition, and it is properly dismissed for lack of
jurisdiction. See Carter v. U.S., 405 Fed.Appx. 409,
410 (11th Cir. 2010) (per curiam) (vacating dismissal of
motion to vacate and remanding to district court “to
dismiss the motion for a lack of jurisdiction”). There
is no indication that the Eleventh Circuit Court of Appeals
has granted Petitioner permission to file a successive habeas
petition, and a review of the federal judiciary's Public
Access to Courts Electronic Records online database reveals
that he has twice been denied leave to file his successive
petition. See In re: Isaac Borders, No. 14-11343
(11th Cir. April 14, 2014); In re: Isaac Borders,
No. 15-12288 (11th Cir. June 16, 2016).
therefore ORDERED that the instant petition
be DISMISSED WITHOUT PREJUDICE for lack of
jurisdiction and as second or successive.
Dismissal of a habeas petition as
second or successive does not constitute a final order for
purposes of 28 U.S.C. § 2253(c). See Bolin v.
Sec'y, Fla. Dep't of Corr., 628 Fed.Appx. 728,
730 (11th Cir. 2016) (per curiam). Accordingly, the Court
need not address ...