David Britt v. Karl Fort

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 21-11786

Non-Argument Calendar

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DAVID BRITT, Petitioner-Appellant,

versus KARL FORT,

Respondent-Appellee.

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Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cv-04304-SCJ

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2 Opinion of the Court 21-11786

Before WILSON, ROSENBAUM, and DUBINA, Circuit Judges. PER CURIAM:

David Britt, a Georgia prisoner proceeding pro se, appeals

the district court’s order dismissing his habeas corpus petition un- der 28 U.S.C. § 2254. Britt argues that the district court erred when it determined that his case is a successive § 2254 petition because Britt had filed a previous federal habeas petition challenging his Georgia state convictions and sentences that the district court de- nied on the merits. After a review of the record and having read Britt’s appellate brief, we affirm the district court’s order of dismis- sal. 1 I.

We review de novo a district court’s order of dismissal for lack of jurisdiction. Howard v. Warden, 776 F.3d 772, 775 (11th

1 The Appellee did not file an appellate brief.

21-11786 Opinion of the Court 3 Cir. 2015). We also review de novo whether a habeas petition is successive. Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th Cir. 2017) (en banc). A Certificate of Appealability (“COA”), typically required for appeals from a final order of a ha- beas proceeding, is not required for an appeal of an order dismiss- ing a petitioner’s filing as a successive habeas petition. 28 U.S.C. § 2253(c); See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). We can review the dismissal as a “final decision” under 28 U.S.C. § 1291. See Hubbard, 379 F.3d at 1247.

Under 28 U.S.C. § 2244(b), a state prisoner who wishes to file a second or successive habeas corpus petition must move the court of appeals for an order authorizing the district court to con- sider such a petition. See 28 U.S.C. § 2244(b)(3)(A). Whether a ha- beas petition is successive depends “on the judgment challenged.” Patterson, 849 F.3d at 1325. Where the prisoner fails to seek or 4 Opinion of the Court 21-11786 obtain authorization to file a successive petition, the district court lacks jurisdiction to consider the merits of the petition. Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 796 (2007). We liber- ally construe pro se briefs. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

II.

We conclude that, based on the record, the district court properly dismissed Britt’s petition for lack of jurisdiction be- cause Britt had previously filed a habeas petition challenging the same convictions and he never received the required authorization to file a successive petition. See 28 U.S.C. § 2244(b)(3)(A); Burton, 548 U.S. at 152-53. Accordingly, we affirm the district court’s order dismissing Britt’s habeas petition for lack of jurisdiction. 2

2 We DENY Britt’s motion to supplement the record.

21-11786 Opinion of the Court 5 AFFIRMED.