Case: 19-12728 Date Filed: 01/28/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12728 Non-Argument Calendar ________________________
D.C. Docket No. 5:16-cv-00917-ACA-JEO
ROBERT C. GILL,
Petitioner-Appellant,
versus
WARDEN, ATTORNEY GENERAL OF THE STATE OF ALABAMA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(January 28, 2020)
Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-12728 Date Filed: 01/28/2020 Page: 2 of 9
Robert Gill, a state prisoner currently serving a life sentence for a 1996
armed-robbery conviction, appeals the district court’s dismissal of his pro se 28
U.S.C. § 2254 petition, which (on its face, anyway) challenged an earlier 1992
drug-possession conviction. Gill argues that the district court erred in dismissing
his petition for lack of subject matter jurisdiction because, he contends, he is “in
custody” for his 1996 conviction, which was enhanced based on the 1992
conviction. He also argues that the district court erred in finding that a § 2254
petition challenging his 1992 conviction would be untimely and that a § 2254
petition challenging his 1996 conviction would be successive. We dismiss Gill’s
appeal as to the timeliness issue, and we affirm the district court’s dismissal of his
petition as outside its jurisdiction to the extent he challenges his 1996 conviction,
as such a petition is barred as successive.
I
Gill’s § 2254 petition involves two prior convictions: one from 1992 and one
from 1996. In 1992, Gill pleaded guilty to possession of a controlled substance in
the Circuit Court of Morgan County, Alabama. He was sentenced to a term of
three years’ imprisonment, which he completed by 1995. In 1996, Gill once again
found himself in the Circuit Court of Morgan County, where he was convicted of
first-degree robbery. Using Gill’s 1992 conviction to enhance his sentence, the
court imposed a term of life without parole.
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In September 2014, while imprisoned pursuant to his 1996 conviction, Gill
filed a post-conviction petition in state court relating to his 1992 conviction: He
alleged that the 3-year sentence he had served was invalid because the trial court
failed to impose upon him a mandatory $1,000 Drug Demand Reduction fine. The
circuit court granted the petition and ordered an amended sentencing hearing. On
January 6, 2015, the trial court held the resentencing hearing, at which Gill was not
represented by counsel, and amended the 1992 sentencing order to include the
mandatory $1,000 fine. Two days later, Gill filed a motion to withdraw his 1992
guilty plea, arguing that the trial court’s imposition of the mandatory fine rendered
the plea involuntary, given that he was never told prior to pleading guilty that he
would be subject to the additional fine. The circuit court denied his motion, and
the state court of appeals affirmed.
In 2016, Gill filed the instant pro se federal habeas petition, which listed his
1992 conviction as the subject of his challenge. It alleged two grounds for relief:
(1) that Gill should have been permitted to withdraw his 1992 guilty plea because
it was unknowingly and involuntarily made, and (2) that Gill was improperly
denied the right to counsel at the January 6, 2015 resentencing hearing. The State
of Alabama moved to dismiss Gill’s petition on the ground that—because Gill is
no longer “in custody” pursuant to his 1992 conviction—the district court lacked
jurisdiction to consider Gill’s challenge.
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Relying on the Report and Recommendation of a magistrate judge, the
district court dismissed Gill’s petition for lack of jurisdiction. It held that,
regardless of whether Gill’s petition is construed as an attack on his 1992
conviction or as an attack on his 1996 conviction, it could not be considered. To
the extent Gill’s petition attacks his 1992 conviction, the district court held, the
court lacked jurisdiction to consider it because Gill is not “in custody” pursuant to
that conviction—because his three-year sentence has been fully served, the 1992
conviction can’t be used to challenge his 1996 conviction. The petition would also
be untimely, according to the district court, because the 2015 amendment to Gill’s
1992 sentence did not constitute a “new judgment” for purposes of 28 U.S.C. §
2244. Alternatively, to the extent that Gill’s petition attacks his 1996 conviction,
the court concluded, it is a successive petition for which he had not demonstrated
approval from this Court pursuant to 28 U.S.C. § 2244(b). (In July 2001, Gill had
filed a § 2254 petition for relief from his 1996 conviction.)
The district court thus adopted the magistrate judge’s report and accepted his
recommendation, “with the exception of the recommendation that it would dismiss
the case with prejudice,” because, the district court held, “dismissal for lack of
jurisdiction is without prejudice.” The district court also denied a Certificate of
Appealability (“COA”), and Gill did not seek one from this Court.
II
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Because no COA has been issued, on appeal the state argues that we do not
have jurisdiction to review the district court’s order denying Gill’s petition. Before
addressing Gill’s arguments, therefore, we must first determine whether we have
jurisdiction to consider them on appeal, an issue that we review de novo. Williams
v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides that “[u]nless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from . . . the final order in a
habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). “The key inquiry
into whether an order is ‘final’ for § 2253 purposes is whether it is an order that
dispose[s] of the merits of a habeas corpus proceeding.” Jackson v. United States,
875 F.3d 1089, 1090 (11th Cir. 2017) (quotation omitted, alteration in original).
When a COA is required, we lack jurisdiction to hear the appeal unless and until
one issues. Id. at 1090-91.
A COA is not required, however, to review a district court’s dismissal of a
habeas petition for lack of subject matter jurisdiction. Hubbard v. Campbell, 379
F.3d 1245, 1247 (11th Cir. 2004). In Hubbard, we explained that § 2253(c) does
not apply to an order dismissing a habeas petition for lack of subject matter
jurisdiction because such an order “is not a final order in a habeas corpus
5 Case: 19-12728 Date Filed: 01/28/2020 Page: 6 of 9
proceeding within the meaning of the statute.” Id.
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Case: 19-12728 Date Filed: 01/28/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12728 Non-Argument Calendar ________________________
D.C. Docket No. 5:16-cv-00917-ACA-JEO
ROBERT C. GILL,
Petitioner-Appellant,
versus
WARDEN, ATTORNEY GENERAL OF THE STATE OF ALABAMA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(January 28, 2020)
Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-12728 Date Filed: 01/28/2020 Page: 2 of 9
Robert Gill, a state prisoner currently serving a life sentence for a 1996
armed-robbery conviction, appeals the district court’s dismissal of his pro se 28
U.S.C. § 2254 petition, which (on its face, anyway) challenged an earlier 1992
drug-possession conviction. Gill argues that the district court erred in dismissing
his petition for lack of subject matter jurisdiction because, he contends, he is “in
custody” for his 1996 conviction, which was enhanced based on the 1992
conviction. He also argues that the district court erred in finding that a § 2254
petition challenging his 1992 conviction would be untimely and that a § 2254
petition challenging his 1996 conviction would be successive. We dismiss Gill’s
appeal as to the timeliness issue, and we affirm the district court’s dismissal of his
petition as outside its jurisdiction to the extent he challenges his 1996 conviction,
as such a petition is barred as successive.
I
Gill’s § 2254 petition involves two prior convictions: one from 1992 and one
from 1996. In 1992, Gill pleaded guilty to possession of a controlled substance in
the Circuit Court of Morgan County, Alabama. He was sentenced to a term of
three years’ imprisonment, which he completed by 1995. In 1996, Gill once again
found himself in the Circuit Court of Morgan County, where he was convicted of
first-degree robbery. Using Gill’s 1992 conviction to enhance his sentence, the
court imposed a term of life without parole.
2 Case: 19-12728 Date Filed: 01/28/2020 Page: 3 of 9
In September 2014, while imprisoned pursuant to his 1996 conviction, Gill
filed a post-conviction petition in state court relating to his 1992 conviction: He
alleged that the 3-year sentence he had served was invalid because the trial court
failed to impose upon him a mandatory $1,000 Drug Demand Reduction fine. The
circuit court granted the petition and ordered an amended sentencing hearing. On
January 6, 2015, the trial court held the resentencing hearing, at which Gill was not
represented by counsel, and amended the 1992 sentencing order to include the
mandatory $1,000 fine. Two days later, Gill filed a motion to withdraw his 1992
guilty plea, arguing that the trial court’s imposition of the mandatory fine rendered
the plea involuntary, given that he was never told prior to pleading guilty that he
would be subject to the additional fine. The circuit court denied his motion, and
the state court of appeals affirmed.
In 2016, Gill filed the instant pro se federal habeas petition, which listed his
1992 conviction as the subject of his challenge. It alleged two grounds for relief:
(1) that Gill should have been permitted to withdraw his 1992 guilty plea because
it was unknowingly and involuntarily made, and (2) that Gill was improperly
denied the right to counsel at the January 6, 2015 resentencing hearing. The State
of Alabama moved to dismiss Gill’s petition on the ground that—because Gill is
no longer “in custody” pursuant to his 1992 conviction—the district court lacked
jurisdiction to consider Gill’s challenge.
3 Case: 19-12728 Date Filed: 01/28/2020 Page: 4 of 9
Relying on the Report and Recommendation of a magistrate judge, the
district court dismissed Gill’s petition for lack of jurisdiction. It held that,
regardless of whether Gill’s petition is construed as an attack on his 1992
conviction or as an attack on his 1996 conviction, it could not be considered. To
the extent Gill’s petition attacks his 1992 conviction, the district court held, the
court lacked jurisdiction to consider it because Gill is not “in custody” pursuant to
that conviction—because his three-year sentence has been fully served, the 1992
conviction can’t be used to challenge his 1996 conviction. The petition would also
be untimely, according to the district court, because the 2015 amendment to Gill’s
1992 sentence did not constitute a “new judgment” for purposes of 28 U.S.C. §
2244. Alternatively, to the extent that Gill’s petition attacks his 1996 conviction,
the court concluded, it is a successive petition for which he had not demonstrated
approval from this Court pursuant to 28 U.S.C. § 2244(b). (In July 2001, Gill had
filed a § 2254 petition for relief from his 1996 conviction.)
The district court thus adopted the magistrate judge’s report and accepted his
recommendation, “with the exception of the recommendation that it would dismiss
the case with prejudice,” because, the district court held, “dismissal for lack of
jurisdiction is without prejudice.” The district court also denied a Certificate of
Appealability (“COA”), and Gill did not seek one from this Court.
II
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Because no COA has been issued, on appeal the state argues that we do not
have jurisdiction to review the district court’s order denying Gill’s petition. Before
addressing Gill’s arguments, therefore, we must first determine whether we have
jurisdiction to consider them on appeal, an issue that we review de novo. Williams
v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides that “[u]nless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from . . . the final order in a
habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). “The key inquiry
into whether an order is ‘final’ for § 2253 purposes is whether it is an order that
dispose[s] of the merits of a habeas corpus proceeding.” Jackson v. United States,
875 F.3d 1089, 1090 (11th Cir. 2017) (quotation omitted, alteration in original).
When a COA is required, we lack jurisdiction to hear the appeal unless and until
one issues. Id. at 1090-91.
A COA is not required, however, to review a district court’s dismissal of a
habeas petition for lack of subject matter jurisdiction. Hubbard v. Campbell, 379
F.3d 1245, 1247 (11th Cir. 2004). In Hubbard, we explained that § 2253(c) does
not apply to an order dismissing a habeas petition for lack of subject matter
jurisdiction because such an order “is not a final order in a habeas corpus
5 Case: 19-12728 Date Filed: 01/28/2020 Page: 6 of 9
proceeding within the meaning of the statute.” Id. (quotations marks omitted).
Accordingly, we determined that we had jurisdiction to review the district court
order under 28 U.S.C. § 1291. Id.
The state urges us to overrule Hubbard, which we cannot do—we are bound
by a prior panel’s holding “unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court or by this [C]ourt sitting en banc.” In re
Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (quotation omitted).
Even absent a COA, therefore, we have jurisdiction to consider Gill’s
argument that he is “in custody” pursuant to his 1992 conviction. That portion of
the district court’s dismissal was based on subject matter jurisdiction, rather than
an assessment of the merits. See Howard v. Warden, 776 F.3d 772, 775 (11th Cir.
2015) (“The question of whether a person is ‘in custody’ within the meaning of 28
U.S.C. § 2241(c)(3) is one of subject-matter jurisdiction.”); see also Jackson, 875
F.3d at 1090. For the same reason, we also have jurisdiction to review the question
whether Gill’s petition is successive. In re Morgan, 717 F.3d 1186, 1193 (11th
Cir. 2013) (citation omitted) (“The bar on second or successive motions is
jurisdictional.”).
The government also challenges our jurisdiction to review whether the
district court properly dismissed Gill’s petition as untimely. Unlike the “in
custody” and successive-petition issues, the statute of limitations for habeas cases
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does not implicate jurisdiction. Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.
2000). This Court cannot address the question of timeliness without a COA on that
issue; because none has issued, we dismiss that portion of the appeal.
III
We turn now to the issues we can consider: (1) whether Gill is “in custody”
for the purposes of his petition, and (2) whether Gill’s petition is an unauthorized
successive petition. We review a district court’s dismissal for lack of jurisdiction
de novo. See Diaz v. State of Fla. Fourth Judicial Circuit, 683 F.3d 1261, 1263
(11th Cir. 2012) (citation omitted).
To bring a habeas petition, the petitioner must be “in custody in violation of
the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3),
which the Supreme Court has interpreted as requiring the petitioner to be “in
custody” under the conviction or sentence that he seeks to attack at the time that he
files his petition. Maleng v. Cook, 490 U.S. 488, 490–91 (1989).
In the instant § 2254 petition, Gill challenges his 1992 conviction, for which
he received and completed a three-year sentence. Because Gill is no longer “in
custody” pursuant to the 1992 conviction, he cannot challenge that conviction in a
habeas petition. Id. On appeal, however, Gill argues that his petition should be
read to challenge to his 1996 conviction for first-degree robbery—for which he is
currently incarcerated for life without parole and which was enhanced based on his
7 Case: 19-12728 Date Filed: 01/28/2020 Page: 8 of 9
1992 conviction. Because Gill is proceeding pro se, we will construe his petition
liberally as a challenge to his 1996 conviction. Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008).
In so doing, we follow the Supreme Court’s lead in Lackawanna County
District Attorney v. Coss, 532 U.S. 394 (2001). There, the petitioner was convicted
in 1986 of simple assault, institutional vandalism, and criminal mischief, and
sentenced to two consecutive prison terms of six months to one year. Id. at 397.
In 1990, after fully serving the sentences for his 1986 convictions, the petitioner
was convicted of aggravated assault and sentenced to 6 to 12 years in prison. Id. at
399. In 1994, the petitioner filed a § 2254 petition contending that his 1986
conviction for assault was the product of ineffective assistance of counsel. Id..
The Supreme Court construed the petition liberally as asserting a challenge to his
1990 conviction, as enhanced by the allegedly invalid prior 1986 conviction. Id. at
401–02. Accordingly, the Court held, the petitioner satisfied § 2254’s “in custody”
requirement. Id. at 402. In the same fashion, we conclude that Gill has met the “in
custody” requirement. 1
1 Despite clearing the “in custody” bar, there is language in Lackawanna that indicates that Gill’s petition is barred nonetheless. “Once a state conviction is no longer open to direct or collateral attack in its own right,” the Court held, “the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.” Id. at 403–04. Lackawanna then adds an exception to this rule for “prior conviction[s] . . . obtained where there was a failure to appoint counsel in violation of the Sixth Amendment.” Id. at 404. Because Gill does not allege that he was denied the assistance of counsel in connection with his 1992 conviction, we doubt that he may challenge his 1996 8 Case: 19-12728 Date Filed: 01/28/2020 Page: 9 of 9
The district court properly dismissed Gill’s petition because a challenge to
his 1996 conviction would be successive—Gill has previously challenged that
judgment. See 28 U.S.C. § 2244(b)(3)(A). AEDPA provides that, before a
petitioner can file a second or successive habeas petition in district court, he must
move in the appropriate court of appeals for an order authorizing it. Id. Without
authorization, the district court lacks jurisdiction to consider a second or successive
habeas petition. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)
(citation omitted). Because Gill has not obtained authorization from this Court to
file a successive petition, the district court did not have jurisdiction to consider a
challenge to his 1996 conviction. See id.
DISMISSED IN PART, AFFIRMED IN PART.
sentence on the ground that his 1992 conviction was illegally obtained. Fortunately, we need not decide the extent of Lackawanna’s rule, counter-rule, and exception, as we can instead affirm the dismissal of Gill’s petition on other grounds—as explained in text, to the extent it challenges his 1996 conviction, his petition is successive.