USCA11 Case: 22-11418 Document: 22-1 Date Filed: 08/29/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11418
Non-Argument Calendar
____________________
IRWIN HICKS, JR.,
Petitioner-Appellant,
versus
FLORIDA ATTORNEY GENERAL,
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:21-cv-00360-JLB-PRL
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2 Opinion of the Court 22-11418
____________________
Before WILSON, LUCK, and EDMONDSON, Circuit Judges.
PER CURIAM:
Irwin Hicks, Jr., a Florida prisoner proceeding pro se, appeals
the district court’s dismissal of his
28 U.S.C. § 2254 petition for ha-
beas corpus. The district court concluded that Hicks’s petition was
an unauthorized second or successive petition over which the dis-
trict court lacked jurisdiction. No reversible error has been shown;
we affirm. *
We review de novo whether a section 2254 habeas petition is
second or successive. See Patterson v. Sec’y, Fla. Dep’t of Corr.,
849
F.3d 1321, 1324 (11th Cir. 2017) (en banc). We construe liberally pro
se pleadings. See Tannenbaum v. United States,
148 F.3d 1262, 1263
(11th Cir. 1998). We also read liberally briefs filed by pro se litigants.
See Timpson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
Before a prisoner may file a second or successive habeas pe-
tition, he first must obtain an order from the court of appeals au-
thorizing the district court to consider the petition.
28 U.S.C. §
2244(b)(3)(A). Absent such an order, the district court lacks
* On appeal, Hicks seems to raise no argument challenging the district court’s
second-or-successive determination and focuses, instead, only on the merits of
his underlying claims. Even if we construe liberally Hicks’s pro se brief as chal-
lenging the district court’s second-or-successive determination, the district
court concluded properly that Hicks’s petition was subject to dismissal as an
unauthorized second or successive petition.
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22-11418 Opinion of the Court 3
jurisdiction to consider a second or successive habeas petition.
Lambrix v. Sec’y, Dep’t of Corr.,
872 F.3d 1170, 1180 (11th Cir. 2017).
In 2011, Hicks pleaded guilty to five drug offenses in viola-
tion of Florida law. Hicks was sentenced to 20 years’ imprison-
ment, to be suspended upon the completion of 5 years of drug-
offender probation. Hicks filed no direct appeal.
In 2014, a probation officer charged Hicks with violating the
terms of his probation by committing a new criminal offense. Fol-
lowing a hearing, the state court found Hicks guilty of violating his
probation. The state court revoked Hicks’s drug-offender proba-
tion and imposed a total sentence of 20 years’ imprisonment. The
judgment was later affirmed on direct appeal; the mandate issued
in April 2016.
In February 2015 -- while Hicks’s direct appeal was still pend-
ing -- Hicks filed his first
28 U.S.C. § 2254 petition, challenging the
revocation of his probation and his resulting sentence. Because
Hicks had not yet completed his direct appeal and state collateral
attacks, the district court dismissed the petition without prejudice.
Hicks filed his second section 2254 petition in 2017, challeng-
ing both his original criminal proceedings and his probation-revo-
cation proceedings. The district court denied Hicks’s petition and
dismissed the case with prejudice. This Court denied Hicks a cer-
tificate of appealability.
In 2021, Hicks filed the section 2254 petition at issue in this
appeal, challenging again his probation-revocation proceedings
and sentence.
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4 Opinion of the Court 22-11418
The district court made no error in determining that Hicks’s
2021 section 2254 petition is second or successive. The record
demonstrates that Hicks already challenged his probation revoca-
tion and sentence in his earlier-filed 2017 habeas petition: a petition
that was dismissed with prejudice. Because Hicks failed to obtain
authorization from this Court to file a second or successive peti-
tion, the district court lacked jurisdiction to consider Hicks’s 2021
petition. See Lambrix,
872 F.3d at 1180.
AFFIRMED.
