In Re: Leslie Parker

Aug 10, 2016
16-13814-J
Versions:832 F.3d 1250
2016 WL 4206373
2016 U.S. App. LEXIS 14721

Concurrence Opinion

ROSENBAUM, Circuit Judge,

with whom JILL PRYOR, Circuit Judge joins, concurring:

I agree that In re Baptiste, No. 16-13959, 828 F.3d 1337, 2016 WL 3752118 (11th Cir. July 13, 2016), requires us to dismiss Leslie Parker’s request for authorization to file a second or successive habe-as petition. I write separately because I continue to believe that Baptiste’s interpretation of 28 U.S.C. § 2244(b)(1) to pro- Mbit us from considering a successive request for authorization to file a second or successive habeas petition where a prior request for authorization raising the same claim was denied, is incorrect as a matter of law. See In re Jones, No. 16-14053, 830 F.3d 1295, 2016 WL 4011143 (11th Cir. July 27, 2016). 'Section 2244(b)(1) simply contains no such limitation. See id. As for § 2244(b)(3)(E), it likewise says nothing about successive requests for authorization. And, where we know that, as a matter of law, we have incorrectly denied a prior request for authorization under the abbreviated 30-day gatekeeping procedure required by AEDPA, we should be able to correct our error and provide the petitioner with a real opportunity to have his case considered on the merits. Anything less flirts with violating the Suspension Clause.





Lead Opinion

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Leslie Parker filed a request seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. On July 7, 2016, this Court granted his request. Subsequently, however, one member of the panel learned of a conflict requiring recusal. As a result, we must vacate and decide anew Parker’s request to file a successive § 2255 motion in district court.

In the intervening time between the July 7 order and now, we issued In re Baptiste, No. 16-13959, 828 F.3d 1337, 2016 WL 3752118 (11th Cir. July 13, 2016). Under In re Baptiste, a later request of a prisoner who has previously filed a request for authorization to file a second or successive petition based on the same claim must be dismissed. Because Parker has already filed a request presenting a claim based on Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), we must dismiss his current request, regardless of its merit, since it raises the same claim as his first request.

APPLICATION DISMISSED.