          Case: 15-15761   Date Filed: 01/07/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT

                     ________________________

                             No. 15-15761

                        Non-Argument Calendar

                     ________________________

              D.C. Docket No. 8:15-cv-02943-JDW-MAP



OSCAR RAY BOLIN, JR.,

                                            Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                            Respondents - Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                           (January 7, 2016)
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Before ED CARNES, Chief Judge, TJOFLAT and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:

       On December 28, 2015, prior to his execution for the murder of Teri Lynn

Matthews, which is scheduled to take place on January 7, 2016, Oscar Ray Bolin,

Jr., filed a second or successive petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 in the United States District Court for the Middle District of Florida.

In conjunction with that petition, Bolin moved for a stay of execution. On

December 30, 2015, the District Court dismissed Bolin’s petition for lack of

jurisdiction because Bolin failed to show that he was entitled to file a second or

successive habeas petition under 28 U.S.C. § 2244.1 Accordingly, the court denied

his request for a stay as well.2


       1
          Bolin has also filed an application seeking from this Court authorization for the district
court to consider a second or successive petition for a writ of habeas corpus. We have denied
that application in a separate order. See In re: Oscar Ray Bolin, Jr., No. 15-15710-P (11th Cir.
Jan. 4, 2016).
        2
          The court did, however, grant a certificate of appealability (COA) that reads, in full:
“Bolin is granted a [COA] on the issue of the district court’s jurisdiction.” Oscar Ray Bolin, Jr.
v. Sec’y, Dep’t of Corr., Case No. 8:15-cv-2943-T-27MAP, at 5–6 (M.D. Fla. Dec. 30, 2015)
(emphasis added). That COA was granted in error on a broad jurisdictional question rather than
a specific constitutional denial as required by 28 U.S.C. § 2253(c). As we made clear in Spencer
v. United States, federal courts “cannot ignore the clear command” that “Congress articulated in
subsections 2253(c)(2) and (3).” 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). Those
provisions provide that a COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right” and “shall indicate which specific issue or issues satisfy
[that] showing.” 28 U.S.C. §§ 2253(c)(2), (3). Though we ultimately exercised our discretion to
rule on the merits in Spencer despite a faulty COA because of the “late hour” at which the issue
was raised and the substantial judicial resources already expended, we also noted that “[w]e will

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       Because the District Court was correct to dismiss Bolin’s successive habeas

petition for lack of subject-matter jurisdiction and because our precedent

establishes that such a dismissal does not constitute a “final order in a habeas

corpus proceeding” for purposes of 28 U.S.C. § 2253(c), we affirm that dismissal

as a “final decision” pursuant to 28 U.S.C. § 1291.

       The District Court correctly held that Bolin lacked jurisdiction to bring a

second or successive petition because he failed to first obtain authorization to do so

from this Court as required by 28 U.S.C. § 2244(b)(3)(A). 3 For the reasons given

in our order denying Bolin’s application for leave to file a second or successive

habeas petition, see In re: Oscar Ray Bolin, Jr., No. 15-15710-P, at 6–13 (11th Cir.



not be so lenient in future appeals when a certificate fails to conform to the gatekeeping
requirements imposed by Congress.” Spencer, 773 F.3d at 1137–38; see also Damren v.
Florida, 776 F.3d 816, 820–21 (11th Cir. 2015) (reiterating that “we are reluctant to disregard
the gatekeeping requirements Congress has set up” but choosing to reach the merits because of
the litigation’s “lengthy procedural journey,” which lasted more than a decade and involved a
previous appeal before this Court). We ended our discussion of the correct process for issuing a
COA by warning that a “failure to specify” the underlying constitutional issue, whether
committed by this Court or a district court, “will result in the vacatur of the certificate.” Spencer,
773 F.3d at 1138.
         Here, the District Court failed to identify with any meaningful degree of specificity a
potential constitutional denial. Rather, the COA encompasses only a jurisdictional question—
and an extraordinarily capacious one at that. Given that the entirety of this round of Bolin’s
habeas litigation has lasted only a handful of days, we see no reason not to make good on our
warning in Spencer. Were we not affirming the District Court’s dismissal of Bolin’s successive
petition for lack of subject-matter jurisdiction, we would vacate the COA as improvidently
granted.
         3
           Section 2244(b)(3)(A) provides, “Before a second or successive application permitted
by this section is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.”

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Jan. 4, 2016), Bolin is unable to show either that he is entitled to bring a successive

habeas petition in line with the requirements of 28 U.S.C. § 2244 or that the claims

he seeks to bring “f[a]ll within [the] small subset of unavailable claims that could

not reasonably be categorized as ‘successive.’” Stewart v. United States, 646 F.3d

856, 861 (11th Cir. 2011) (quoting Leal Garcia v. Quarterman, 573 F.3d 214, 222,

224 (5th Cir. 2009)). Therefore, the District Court properly held that it was barred

from hearing Bolin’s latest battery of claims.

      Before concluding, we pause briefly to note why a COA need not issue

before we can affirm a district court’s dismissal of a second or successive habeas

petition for lack of subject-matter jurisdiction. As we have previously held, a

dismissal of a successive habeas petition for lack of subject-matter jurisdiction

does not constitute a “final order in a habeas corpus proceeding” for purposes of 28

U.S.C. § 2253(c). Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). If

it did, due to the limits Congress imposed on our jurisdiction, either a COA would

first have to issue or our review would be precluded. Instead, such a dismissal is a

“final decision” pursuant to 28 U.S.C. § 1291 and a COA is thus “unnecessary to

permit us to review the district court’s order of dismissal.” See id.

      With that in mind, we AFFIRM the District Court’s dismissal of Bolin’s

successive habeas petition for lack of subject-matter jurisdiction.

      AFFIRMED.
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ED CARNES, Chief Judge, concurring.

      I agree with the Court that we are bound by precedent to hold that a

certificate of appealability is not required before a petitioner can appeal a district

court’s dismissal under 28 U.S.C. § 2244(b)(2) & (3)(A) of a habeas petition for

lack of subject matter jurisdiction. See Hubbard v. Campbell, 379 F.3d 1245 (11th

Cir. 2004). That is unfortunate because Hubbard wrongly decided that issue.

      A habeas petitioner is required to obtain a COA to appeal “the final order in

a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A) (emphasis added).

Where a district court dismisses a habeas petition for lack of jurisdiction, “the

petitioner has no further recourse in the district court, and, as such, the dismissal is

a final order by that court.” United States v. Harper, 545 F.3d 1230, 1233 (10th

Cir. 2008). And the order is obviously “in a habeas corpus proceeding.” See Jones

v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004). That being so, § 2253(c)(1)(A)

expressly prohibits a petitioner whose petition was dismissed for lack of

jurisdiction from appealing that dismissal without a COA. All the circuits to

address the issue have reached that conclusion. See Harper, 545 F.3d at 1233;

Resendiz v. Quarterman, 454 F.3d 456, 458 (5th Cir. 2006); Sveum v. Smith, 403

F.3d 447, 448 (7th Cir. 2005); Jones, 392 F.3d at 688–89. Except us.


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      Without the benefit of the later decisions from those four other circuits, the

Hubbard opinion’s entire discussion of the COA issue consists of just three

sentences:

      Section 2253(c) has no application here because the district court’s
      decision dismissing the Amended Petition is not “a final order in a
      habeas corpus proceeding” within the meaning of the statute. Rather,
      the decision is a final order dismissing the Amended Petition for lack
      of subject matter jurisdiction. We have jurisdiction to review the
      order pursuant to 28 U.S.C. § 1291.

379 F.3d at 1247. Each of those three sentences is purely conclusory. None of

them explains why a jurisdictional dismissal, which is “a final order dismissing [a

petition] for lack of subject matter jurisdiction,” is not “a final order in a habeas

corpus proceeding.” An order dismissing a habeas proceeding for lack of

jurisdiction is as much a final order as one dismissing a habeas proceeding for lack

of merit. Both finally dispose of the proceeding. The Hubbard opinion does not

explain why an order dismissing a habeas petition for lack of jurisdiction is a “final

decision” under § 1291, but not a “final order in a habeas corpus proceeding” for

purposes of § 2253(c)(1)(A).

      In Gonzalez v. Sec’y for the Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir.

2004) (en banc), we held that “a certificate of appealability is required for the

appeal of any denial of a [Federal Rule of Civil Procedure] 60(b) motion for relief

from a judgment in a [28 U.S.C.] § 2254 . . . proceeding.” We reiterated that

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holding in Jackson v. Crosby, 437 F.3d 1290, 1294–95 (11th Cir. 2006). Given

our en banc holding in Gonzalez, what Hubbard means is that if a petitioner labels

his successive pleading a Rule 60(b) motion he must obtain a COA to appeal the

dismissal of it on jurisdictional grounds, Gonzalez, 366 F.3d at 1263, but if he

labels it a § 2254 petition he can appeal the dismissal of it on jurisdictional grounds

without a COA, Hubbard, 379 F.3d at 1247. That illustrates Hubbard’s error.

      If we were free of the Hubbard decision, I would hold that the dismissal of a

habeas petition for lack of subject matter jurisdiction is a “final order in a habeas

corpus proceeding” that requires a COA under § 2253(c)(1)(A). Given that we

must follow Hubbard until it is overturned, I join the Court in addressing the

“merits” of the district court’s decision that under § 2244(b)(2) & (3)(A) Bolin’s

petition was due to be dismissed for lack of jurisdiction, and I agree that decision

should be affirmed.




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