Combs v. Secretary, Department of Corrections et al

Middle District of Florida, flmd-8:2016-cv-02205

ORDER dismissing without prejudice {{1}} --petition for writ of habeas corpus filed by Glennis Dewain Combs; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 8/17/2016. (BK)

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PageID 6 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION GLENNIS DEWAIN COMBS, Applicant, v. CASE NO. 8:16-cv-2205-T-23TBM SECRETARY, Department of Corrections, Respondent. / ORDER Combs applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state conviction for aggravated assault on a law enforcement officer, for which he is imprisoned for fifteen years. Rule 4, Rules Governing Section 2254 Cases, requires both a preliminary review of the application for the writ of habeas corpus and a summary dismissal "[i]f it plainly appears from the face of the [application] and any exhibits annexed to it that the [applicant] is not entitled to relief in the district court. . . ." Combs is barred from pursuing this second or successive application. Combs's earlier challenge to this same conviction in 8:11-cv-622-T-26MAP was denied on the merits. (Doc. 23 in 11-cv-622) Combs is precluded from pursuing a second or successive application without permission from the Eleventh Circuit Court of Appeals. "Before a second or successive application permitted by this PageID 7 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). Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir. 1999). Until he obtains authorization to file a second or successive application, the district court lacks jurisdiction to review the application. 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."). Accordingly, the application for the writ of habeas corpus (Doc. 1) is DISMISSED without prejudice. The clerk must close this case. DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS Combs is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Combs must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d -2- PageID 8 926, 935 (11th Cir 2001). Because the application is clearly a second or successive application, Combs is entitled to neither a COA nor leave to appeal in forma pauperis. Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Combs must obtain authorization from the circuit court to appeal in forma pauperis. ORDERED in Tampa, Florida, on August 17, 2016. -3-