Tulio Rivera v. Secretary, Florida Department of Corrections
670 F. App'x 685
11th Cir.2016Background
- Rivera is a Florida state prisoner convicted in 1982 of two counts of first-degree murder and three counts of attempted first-degree murder.
- Rivera previously filed multiple § 2254 petitions: 1983 (dismissed without prejudice for failure to exhaust), 1984 (adjudicated on the merits and denied; affirmance on appeal), and 2008 (dismissed for lack of authorization as successive; no appeal).
- In October 2015 Rivera filed the present § 2254 petition challenging the same 1982 conviction.
- The magistrate judge recommended dismissal because Rivera did not obtain prior authorization from the Eleventh Circuit under AEDPA § 2244(b)(3).
- The district court adopted the recommendation and dismissed the 2015 petition for lack of jurisdiction; Rivera appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2015 § 2254 petition is "second or successive" under AEDPA | Rivera implicitly contends the district court should consider his petition | The State argues the petition is successive because Rivera previously obtained merits review in 1984 and did not get appellate authorization | The court held the 2015 petition is second or successive and must be dismissed without prior Eleventh Circuit authorization |
| Whether failure to obtain prior authorization deprives the district court of jurisdiction | Rivera did not obtain authorization and did not dispute jurisdiction below | The State contends failure to follow § 2244(b)(3) requires dismissal for lack of jurisdiction | The court held that without the required authorization the district court lacked jurisdiction and dismissal was proper |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (establishes dismissal for lack of authorization deprives district court of jurisdiction)
- Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) (standard of review: de novo for second-or-successive determination)
- Insignares v. Sec’y, Fla. Dept. of Corr., 755 F.3d 1273 (11th Cir. 2014) (second-or-successive status depends on whether prior petition challenged same judgment)
- Stewart v. Martinez-Villareal, 523 U.S. 637 (dismissals for procedural technicalities are not merits adjudications and do not make later petitions successive)
- Dunn v. Singletary, 168 F.3d 440 (11th Cir. 1999) (dismissal without prejudice means later petition is not second or successive)