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832 F.3d 1250

Docket No. 16-13814-J

In re Parker

Eleventh Circuit Court of Appeals

Decided Date Filed: 08/10/2016

Eleventh Circuit Court of Appeals · decided 2016-08-10

Cited by 3 later decisions — most recently March 2019

2 federal appellate ·

Key passage — most relied on by later courts

“I agree that In re Baptiste requires us to dismiss Leslie Parker's request for authorization to file a second or successive habeas petition. I write separately because I continue to believe that Baptiste 's interpretation of 28 U.S.C. 2244(b)(1)... is incorrect as a matter of law.”

quoted by 1 later decision, including U.S. v. St. Hubert

Applies 28 U.S.C. § 2244 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on 135 S. Ct. 2551 - Johnson v. United States · In re Baptiste · In re Jones

Good law ✅— No negative treatment on recordhow we know

Decided 2016-08-10

View the full empirical analysis of this case →

¶1Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.

¶2BY THE PANEL:

¶3Pursuant 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.

¶4In 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.

¶5APPLICATION DISMISSED.

¶6ROSENBAUM, Circuit Judge,

¶7with whom JILL PRYOR, Circuit Judge joins, concurring:

¶8I 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-*1251Mbit 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.

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