Williams v. Secretary for the Department of Corrections , 130 F. App'x 296 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 18, 2005
No. 04-12671
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20545-CV-UUB
DAVID STARR WILLIAMS,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James V. Crosby, Jr.,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 18, 2005)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
David Starr Williams, a Florida prisoner, appeals pro se the denial of his
habeas corpus petition brought under 28 U.S.C. section 2254. Because Williams’s
petition is either successive or an abuse of the writ, we affirm the denial of habeas
relief.
Williams filed his habeas petition in 2003 and claimed that Florida violated
the Ex Post Facto Clause in 1993 when it deprived him of 555 days of
administrative gain-time and 1660 days of provisional credits after Florida changed
how such credits were calculated. The district court found that Williams’s petition
was time-barred. The district court also concluded that the petition was a second
or successive petition, because it attacked Williams’s conviction after Williams
had already filed several similar habeas petitions attacking his conviction. We
granted Williams a certificate of appealability on the issues of timeliness and
whether the petition was successive.
We review de novo the denial of habeas relief by the district court.
Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir. 2002). Unless we first grant
him permission, Williams cannot raise a claim in this habeas petition that he
presented in a previous habeas petition. 28 U.S.C. § 2244(b)(3)(A). “A claim
presented in a second or successive habeas corpus application under section 2254
that was presented in a prior application shall be dismissed.” 28 U.S.C.
§ 2244(b)(1).
Although Williams’s habeas petition does not attack his conviction, but
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instead contests an administrative decision of Florida, his petition is nevertheless
successive. Williams conceded in his reply brief to this Court that he challenged
the cancellation of his credits in a habeas petition filed in 1998. Williams did not
request permission from this Court to file a successive petition, and his petition,
therefore, must be dismissed.
We note, however, that Williams’s 1998 habeas petition is not part of the
record on appeal. Because we cannot be certain that Williams, appealing pro se,
was correct in his concession, we also conclude that Williams’s petition warrants
dismissal as an abuse of the writ even if he did not challenge the cancellation of his
credits in his 1998 petition. The factual and legal basis of this claim was available
to Williams when he filed his 1998 petition. Williams’s credits were cancelled in
1993, and the cases upon which Williams bases his arguments pre-date 1998, with
the possible exception of a decision by a Florida appellate court that regards
federal constitutional issues and does not bind this Court. Because Williams did
not raise this claim in his 1998 petition, he cannot do so now without showing
cause and prejudice:
[U]nless a habeas petitioner shows cause and prejudice, a court may
not reach the merits of ... new claims, not previously raised which
constitute an abuse of the writ. Where a petitioner was aware of the
factual and legal basis of a claim not presented when the first federal
habeas petition was filed, he must demonstrate that the failure to
present the claim in the prior proceeding was not because of
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intentional abandonment, deliberate withholding, or inexcusable
neglect under the abuse of the writ doctrine.
Jones v. White, 992 F.2d 1548, 1565 (11th Cir. 1993) (internal citations and
quotations omitted). Failure to raise a claim need not be deliberate to constitute
abuse of the writ: “a petitioner can abuse the writ by raising a claim in a
subsequent petition that he could have raised in his first, regardless of whether the
failure to raise it earlier stemmed from a deliberate choice.” McCleskey v. Zant,
499 U.S. 467, 489, 111 S. Ct. 1454, 1468 (1991). Williams could have raised this
claim in his 1998 petition. If Williams did not raise this claim in his 1998 petition,
Williams has failed to offer cause for failing to do so. Williams’s habeas petition,
therefore, must be dismissed as an abuse of the writ.
If Williams challenged the cancellation of his credits in his 1998 petition,
Williams’s petition is successive. If Williams did not challenge the cancellation of
his credits in 1998, Williams’s petition is an abuse of the writ. The decision of the
district court is, therefore,
AFFIRMED.
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