David Britt v. Karl Fort, No. 21-11786 (11th Cir. 2021)

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USCA11 Case: 21-11786 Date Filed: 10/26/2021 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11786 Non-Argument Calendar ____________________ DAVID BRITT, Petitioner-Appellant, versus KARL FORT, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cv-04304-SCJ ____________________ USCA11 Case: 21-11786 2 Date Filed: 10/26/2021 Opinion of the Court Page: 2 of 5 21-11786 Before WILSON, ROSENBAUM, and DUBINA, Circuit Judges. PER CURIAM: David Britt, a Georgia prisoner proceeding pro se, appeals the district court’s order dismissing his habeas corpus petition under 28 U.S.C. § 2254. Britt argues that the district court erred when it determined that his case is a successive § 2254 petition because Britt had filed a previous federal habeas petition challenging his Georgia state convictions and sentences that the district court denied on the merits. After a review of the record and having read Britt’s appellate brief, we affirm the district court’s order of dismissal. 1 I. We review de novo a district court’s order of dismissal for lack of jurisdiction. Howard v. Warden, 776 F.3d 772, 775 (11th 1 The Appellee did not file an appellate brief. USCA11 Case: 21-11786 21-11786 Date Filed: 10/26/2021 Opinion of the Court Page: 3 of 5 3 Cir. 2015). We also review de novo whether a habeas petition is successive. Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th Cir. 2017) (en banc). A Certificate of Appealability (“COA”), typically required for appeals from a final order of a habeas proceeding, is not required for an appeal of an order dismissing a petitioner’s filing as a successive habeas petition. 28 U.S.C. § 2253(c); See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). We can review the dismissal as a “final decision” under 28 U.S.C. § 1291. See Hubbard, 379 F.3d at 1247. Under 28 U.S.C. § 2244(b), a state prisoner who wishes to file a second or successive habeas corpus petition must move the court of appeals for an order authorizing the district court to consider such a petition. See 28 U.S.C. § 2244(b)(3)(A). Whether a habeas petition is successive depends “on the judgment challenged.” Patterson, 849 F.3d at 1325. Where the prisoner fails to seek or USCA11 Case: 21-11786 4 Date Filed: 10/26/2021 Page: 4 of 5 Opinion of the Court 21-11786 obtain authorization to file a successive petition, the district court lacks jurisdiction to consider the merits of the petition. Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 796 (2007). We liberally construe pro se briefs. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). II. We conclude that, based on the record, the district court properly dismissed Britt’s petition for lack of jurisdiction because Britt had previously filed a habeas petition challenging the same convictions and he never received the required authorization to file a successive petition. See 28 U.S.C. § 2244(b)(3)(A); Burton, 548 U.S. at 152-53. Accordingly, we affirm the district court’s order dismissing Britt’s habeas petition for lack of jurisdiction. 2 2 We DENY Britt’s motion to supplement the record. USCA11 Case: 21-11786 21-11786 Date Filed: 10/26/2021 Opinion of the Court AFFIRMED. Page: 5 of 5 5

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