Case: 19-13156 Date Filed: 03/05/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13156
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00767-LSC-GMB
LARRY G. COKER,
Petitioner-Appellant,
versus
WARDEN,
ATTORNEY GENERAL OFFICE, STATE OF ALABAMA,
DEWAYNE ESTES,
Respondents-Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 5, 2020)
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Before JILL PRYOR, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
Larry Coker, an Alabama prisoner, filed a
28 U.S.C. § 2254 petition in the
District Court for the Northern District of Alabama. The District Court held that it
lacked jurisdiction to consider his petition because it was successive and
unauthorized. Therefore, the Court dismissed his petition. Coker appeals the
dismissal.
On appeal, Coker also moves for summary judgment, arguing that he is
entitled to relief because the Appellees have not filed a brief in connection with
this appeal.
We deny Coker’s motion for summary judgment as inappropriate on appeal
and affirm the dismissal of his unauthorized, successive § 2254 petition.
I.
Coker’s motion for summary judgment is not an appropriate avenue for
relief on appeal. Summary judgment motions brought under Federal Rule of Civil
Procedure 56 are not to be considered and adjudicated for the first time in the
Circuit Courts of Appeal. See Fed. R. Civ. P. 1 (“These rules govern the procedure
in all civil actions and proceedings in the United States district courts . . . .”
(emphasis added)). Accordingly, we deny Coker’s motion for summary judgment.
II.
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We next consider the District Court’s dismissal of Coker’s § 2254 petition.
The District Court (A) properly concluded that the petition was successive, and
therefore (B) properly dismissed the petition because it was unauthorized.
A.
We review de novo whether a habeas corpus petition is successive.
Patterson v. Sec’y, Fla. Dep’t of Corr.,
849 F.3d 1321, 1324 (11th Cir. 2017) (en
banc).
A petition is successive if the petitioner challenged the same judgment in a
previous § 2254 petition and the previous petition was dismissed as time-barred.
See id. at 1325–26 (“When [the petitioner’s] first federal petition was dismissed as
untimely, [he] lost his one chance to obtain federal habeas review of his 1998
judgment. Because [his new] petition challenges the 1998 judgment a second time,
the district court correctly dismissed it as second or successive.” (citation
omitted)). Here, Coker had already challenged the relevant convictions in a prior §
2254 petition, and that petition was dismissed with prejudice as time-barred.
Therefore, the District Court correctly concluded that Coker’s new petition was
successive. 1
1
Coker contends that his petition is not successive because he was retried and
reconvicted after filing his first petition. The record does not support his contention.
The proceedings to which he alludes were motions for post-conviction relief under
Alabama Rule of Criminal Procedure 32, which were ultimately denied. Therefore, Coker was
not retried, reconvicted, or resentenced.
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B.
Before a second or successive § 2254 petition may be filed, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires the
appropriate Circuit Court of Appeals—here, the Eleventh Circuit—to authorize the
district court to consider the petition.
28 U.S.C. § 2244(b)(3)(A). Without such
authorization, a district court lacks jurisdiction to entertain the petition. Farris v.
United States,
333 F.3d 1211, 1216 (11th Cir. 2003). Here, this Court did not
authorize the District Court to consider Coker’s petition. Therefore, because
Coker’s petition was successive, and because this Court did not authorize the
District Court to consider the petition, the District Court did not err in dismissing
Coker’s petition for lack of jurisdiction.
III.
Accordingly, Coker’s motion is denied, and the judgment of the District
Court is affirmed.
MOTION DENIED, and AFFIRMED.
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