Case: 19-10567 Date Filed: 01/31/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10567 Non-Argument Calendar ________________________
D.C. Docket No. 0:16-cv-60901-JAL
MARCUS BLACKMON,
Petitioner - Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 31, 2020)
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-10567 Date Filed: 01/31/2020 Page: 2 of 8
Marcus Blackmon, a prisoner proceeding pro se, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition. Mr. Blackmon contends that the
district court erred when it dismissed his petition for lack of subject-matter
jurisdiction as impermissibly second or successive. After reviewing the record and
the parties’ briefs, we affirm.
I
On September 26, 2006, Mr. Blackmon pled guilty to grand theft in a Florida
state court and received a sentence of time served. On July 8, 2008, a Florida state
jury convicted Mr. Blackmon of unlawful sexual activity with minors. During Mr.
Blackmon’s sentencing for the 2008 conviction, the state court—relying on the 2006
grand theft conviction—considered Mr. Blackmon a habitual offender and sentenced
him to 30 years in prison. Mr. Blackmon has since filed three different habeas
petitions in the district court seeking review of his 2006 and 2008 state convictions.
A
On November 21, 2012, Mr. Blackmon filed his first habeas corpus petition
challenging his 2008 state conviction (“Petition I”). The district court dismissed
Petition I without prejudice for failure to exhaust state court remedies.
On March 3, 2015, Mr. Blackmon filed his second habeas corpus petition
challenging both his 2006 state conviction and his 2008 state sentence (“Petition
2 Case: 19-10567 Date Filed: 01/31/2020 Page: 3 of 8
II”). Mr. Blackmon raised six claims challenging his 2006 state conviction, and
three claims challenging the sentence for his 2008 state conviction.
On March 14, 2016, the magistrate judge issued a report finding Petition II to
be meritless and recommended denying it and denying a certificate of appealability
(“COA”). On May 31, 2016, following Mr. Blackmon’s objections, the district court
adopted the report and denied Petition II on the merits. Mr. Blackmon sought a COA
to appeal the district court’s denial of Petition II, but we denied a COA on November
16, 2016.
B
On April 15, 2016, before filing his objections to the report and
recommendation regarding Petition II, Mr. Blackmon filed a third habeas petition
raising eleven new claims challenging his 2008 conviction (“Petition III”). Although
Petition II was still pending, the district court docketed Petition III separately from
Petition II as a new habeas corpus case and assigned a new district judge to the case.
On April 26, 2016, the same magistrate judge issued a second report,
recommending that Petition III be dismissed as duplicative of Petition II. On July 7,
2016, the district court rejected the second report because Petition II had been denied
in May of 2016, and Petition III was therefore no longer duplicative of Petition II.
This time, the magistrate judge ordered Mr. Blackmon to file an amended Petition
III, while advising him that the amended petition would be the “sole, operative
3 Case: 19-10567 Date Filed: 01/31/2020 Page: 4 of 8
pleading considered in this case” and that no further amendments would be
permitted.
On July 29, 2016, Mr. Blackmon amended Petition III. The magistrate judge
issued a third report recommending that the district court dismiss Petition III as an
unauthorized second or successive § 2254 petition and deny Mr. Blackmon a COA.
On December 3, 2018, the district court adopted the third report, ruling that Petition
III fell within the AEDPA’s bar on second or successive habeas corpus petitions
because Mr. Blackmon had failed to obtain authorization from our court to file a
second or successive habeas petition.
C
On February 11, 2019, Mr. Blackmon filed the present appeal, arguing that
the district court erred in dismissing Petition III for lack of subject-matter
jurisdiction. At the same time, he sought leave to file a second or successive habeas
corpus petition from our court, raising eight potential claims challenging his 2008
state conviction. In his motion seeking permission to file a second or successive
habeas corpus petition, Mr. Blackmon raised five claims which were substantially
similar to the claims raised in Petition III. The remaining three claims were new,
and had not previously been raised in any habeas corpus petition.
On February 27, 2019, we issued an order denying in part and dismissing in
part Mr. Blackmon’s motion for leave to file a second or successive habeas corpus
4 Case: 19-10567 Date Filed: 01/31/2020 Page: 5 of 8
petition. We denied the motion as to five claims because they did not meet the
statutory criteria, as they did not rely on any new rule of law or newly discovered
evidence. We dismissed the motion as to the remaining three claims because they
were substantially similar to claims raised in “his initial habeas petition.”
II
We review de novo whether a petition for a writ of habeas corpus is second or
successive. See Ponton v. Sec’y, Fla. Dep’t of Corr., 891 F.3d 950, 952 (11th Cir.
2018).
Mr. Blackmon contends that the district court erred when it dismissed Petition
III for lack of subject-matter jurisdiction as impermissibly second or successive. We
agree that the district court made a mistake, but conclude that we are powerless to
correct it at this juncture.
A second or successive § 2254 petition requires prior authorization from our
court. See 28 U.S.C. § 2244(b)(3)(A). A district court lacks jurisdiction to consider
an unauthorized second or successive § 2254 motion. See Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003).
Some of our sister circuits have held that “where a new pro se petition is filed
before the adjudication of a prior petition is complete, the new petition should be
construed as a motion to amend the pending petition rather than as a successive
5 Case: 19-10567 Date Filed: 01/31/2020 Page: 6 of 8
application.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). See also In re
Stevenson, 889 F.3d 308, 309 (6th Cir. 2018); United States v. Sellner, 773 F.3d 927,
932 (8th Cir. 2014). Here, Mr. Blackmon filed Petition III while Petition II was still
pending.
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Case: 19-10567 Date Filed: 01/31/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10567 Non-Argument Calendar ________________________
D.C. Docket No. 0:16-cv-60901-JAL
MARCUS BLACKMON,
Petitioner - Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 31, 2020)
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-10567 Date Filed: 01/31/2020 Page: 2 of 8
Marcus Blackmon, a prisoner proceeding pro se, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition. Mr. Blackmon contends that the
district court erred when it dismissed his petition for lack of subject-matter
jurisdiction as impermissibly second or successive. After reviewing the record and
the parties’ briefs, we affirm.
I
On September 26, 2006, Mr. Blackmon pled guilty to grand theft in a Florida
state court and received a sentence of time served. On July 8, 2008, a Florida state
jury convicted Mr. Blackmon of unlawful sexual activity with minors. During Mr.
Blackmon’s sentencing for the 2008 conviction, the state court—relying on the 2006
grand theft conviction—considered Mr. Blackmon a habitual offender and sentenced
him to 30 years in prison. Mr. Blackmon has since filed three different habeas
petitions in the district court seeking review of his 2006 and 2008 state convictions.
A
On November 21, 2012, Mr. Blackmon filed his first habeas corpus petition
challenging his 2008 state conviction (“Petition I”). The district court dismissed
Petition I without prejudice for failure to exhaust state court remedies.
On March 3, 2015, Mr. Blackmon filed his second habeas corpus petition
challenging both his 2006 state conviction and his 2008 state sentence (“Petition
2 Case: 19-10567 Date Filed: 01/31/2020 Page: 3 of 8
II”). Mr. Blackmon raised six claims challenging his 2006 state conviction, and
three claims challenging the sentence for his 2008 state conviction.
On March 14, 2016, the magistrate judge issued a report finding Petition II to
be meritless and recommended denying it and denying a certificate of appealability
(“COA”). On May 31, 2016, following Mr. Blackmon’s objections, the district court
adopted the report and denied Petition II on the merits. Mr. Blackmon sought a COA
to appeal the district court’s denial of Petition II, but we denied a COA on November
16, 2016.
B
On April 15, 2016, before filing his objections to the report and
recommendation regarding Petition II, Mr. Blackmon filed a third habeas petition
raising eleven new claims challenging his 2008 conviction (“Petition III”). Although
Petition II was still pending, the district court docketed Petition III separately from
Petition II as a new habeas corpus case and assigned a new district judge to the case.
On April 26, 2016, the same magistrate judge issued a second report,
recommending that Petition III be dismissed as duplicative of Petition II. On July 7,
2016, the district court rejected the second report because Petition II had been denied
in May of 2016, and Petition III was therefore no longer duplicative of Petition II.
This time, the magistrate judge ordered Mr. Blackmon to file an amended Petition
III, while advising him that the amended petition would be the “sole, operative
3 Case: 19-10567 Date Filed: 01/31/2020 Page: 4 of 8
pleading considered in this case” and that no further amendments would be
permitted.
On July 29, 2016, Mr. Blackmon amended Petition III. The magistrate judge
issued a third report recommending that the district court dismiss Petition III as an
unauthorized second or successive § 2254 petition and deny Mr. Blackmon a COA.
On December 3, 2018, the district court adopted the third report, ruling that Petition
III fell within the AEDPA’s bar on second or successive habeas corpus petitions
because Mr. Blackmon had failed to obtain authorization from our court to file a
second or successive habeas petition.
C
On February 11, 2019, Mr. Blackmon filed the present appeal, arguing that
the district court erred in dismissing Petition III for lack of subject-matter
jurisdiction. At the same time, he sought leave to file a second or successive habeas
corpus petition from our court, raising eight potential claims challenging his 2008
state conviction. In his motion seeking permission to file a second or successive
habeas corpus petition, Mr. Blackmon raised five claims which were substantially
similar to the claims raised in Petition III. The remaining three claims were new,
and had not previously been raised in any habeas corpus petition.
On February 27, 2019, we issued an order denying in part and dismissing in
part Mr. Blackmon’s motion for leave to file a second or successive habeas corpus
4 Case: 19-10567 Date Filed: 01/31/2020 Page: 5 of 8
petition. We denied the motion as to five claims because they did not meet the
statutory criteria, as they did not rely on any new rule of law or newly discovered
evidence. We dismissed the motion as to the remaining three claims because they
were substantially similar to claims raised in “his initial habeas petition.”
II
We review de novo whether a petition for a writ of habeas corpus is second or
successive. See Ponton v. Sec’y, Fla. Dep’t of Corr., 891 F.3d 950, 952 (11th Cir.
2018).
Mr. Blackmon contends that the district court erred when it dismissed Petition
III for lack of subject-matter jurisdiction as impermissibly second or successive. We
agree that the district court made a mistake, but conclude that we are powerless to
correct it at this juncture.
A second or successive § 2254 petition requires prior authorization from our
court. See 28 U.S.C. § 2244(b)(3)(A). A district court lacks jurisdiction to consider
an unauthorized second or successive § 2254 motion. See Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003).
Some of our sister circuits have held that “where a new pro se petition is filed
before the adjudication of a prior petition is complete, the new petition should be
construed as a motion to amend the pending petition rather than as a successive
5 Case: 19-10567 Date Filed: 01/31/2020 Page: 6 of 8
application.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). See also In re
Stevenson, 889 F.3d 308, 309 (6th Cir. 2018); United States v. Sellner, 773 F.3d 927,
932 (8th Cir. 2014). Here, Mr. Blackmon filed Petition III while Petition II was still
pending. Consequently, the district court should have construed Petition III as a
motion to amend Petition II, and should not have docketed Petition III as a new
habeas corpus petition.
Mr. Blackmon contends that we should vacate the district court dismissal and
remand Petition III because it contains timely new claims that were unexhausted in
the state court when he filed Petition II. We disagree.
Having concluded that the district court committed an error, we should
determine whether remanding Petition III would be futile. Cf. Whab v. United
States, 408 F.3d 116, 120 (2d Cir. 2005) (stating that even though a district court
erred in not treating a subsequent petition as second or successive, remanding to the
district court may not be an appropriate remedy). We conclude that, at this point, it
is not possible to remand to the district court with instructions to treat Petition III as
a motion to amend Petition II. Simply stated, the district court has entered a final
judgment on Petition II, and we denied Mr. Blackmon’s motion for a COA as to
Petition II in 2016. Petition II is now final and closed, and we no longer have any
jurisdiction over that matter. If we were to remand to the district court to consider
6 Case: 19-10567 Date Filed: 01/31/2020 Page: 7 of 8
Petition III on its own merits, this time the district court would have no choice but
to construe Petition III as second or successive because Petition II is already final.
Mr. Blackmon, in his brief, points out that he could not bring the claims
asserted in Petition III when he filed Petition II because those claims were still
pending in state court and were unexhausted. We understand Mr. Blackmon’s
predicament, but the Supreme Court has explained that although petitioners “filing
mixed petitions may proceed with only the exhausted claims, … doing so risks
subjecting later petitions that raise new claims to rigorous procedural obstacles,”
such as the subsequent petition becoming second or successive. See Burton v.
Stewart, 549 U.S. 147, 155 (2007).
Here, Mr. Blackmon filed Petition III—containing eleven new claims
regarding his 2008 state conviction—only after Petition II was ripe for
determination, and the magistrate judge had recommended that Petition II be denied
on its merits. Allowing Mr. Blackmon to file Petition III now containing his newly
exhausted claims “would be inconsistent with both the exhaustion requirement, with
its purpose of reducing ‘piecemeal litigation,’ and AEDPA, with its goal of
‘streamlining federal habeas proceedings.’” Id. This is particularly so because we
have already denied Mr. Blackmon permission to file a second or successive habeas
corpus petition with respect of the merits of the claims in Petition III.
III
7 Case: 19-10567 Date Filed: 01/31/2020 Page: 8 of 8
For the foregoing reasons, we affirm the district court’s dismissal of Mr.
Blackmon’s third § 2254 habeas petition.
AFFIRMED.