           Case: 16-13437   Date Filed: 05/23/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-13437
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:16-cv-60870-CMA



TIMOTHY HARTMAN,

                                                          Petitioner-Appellant,

                                 versus

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

                                                      Respondents-Appellees.

                      ________________________

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

                             (May 23, 2017)

Before JORDAN, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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      Timothy Hartman, pro se, appeals the dismissal for lack of jurisdiction of his

28 U.S.C. § 2254 petition. We affirm.

                                    I. BACKGROUND

A. Initial § 2254 Petition

      On January 29, 2014, Hartman filed his initial 28 U.S.C. § 2254 petition

challenging his 2005 Florida convictions for armed robbery, attempted robbery

with a weapon, battery, and false imprisonment. His petition raised 19 claims

alleging trial-court error and ineffective assistance of trial and appellate counsel.

None of Hartman’s ineffective-assistance-of-counsel claims were based on an

alleged conflict of interest, nor did he assert a manifest-injustice claim. A

magistrate judge ordered Hartman to file an amended § 2254 petition, because his

initial petition did not comply with the local rules regarding page length. Hartman

filed an amended petition within the page limit, which eliminated some of the

claims from his initial petition.

      The magistrate judge issued a report and recommendation (“R&R”)

recommending a denial of Hartman’s § 2254 petition. The magistrate judge noted

Hartman filed a habeas petition in state court on January 23, 2014, and argued a

manifest injustice occurred when trial counsel, who represented both Hartman and

his codefendant, arranged for Hartman’s codefendant to testify against him. The

district judge denied Hartman’s claims on the merits. Hartman sought to appeal


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the judge’s denial of his petition; this court denied a certificate of appealability

(“COA”) on January 7, 2016. Order, Hartman v. Florida, No. 15-13128 (11th Cir.

Jan. 7, 2016). He filed a motion for reconsideration from the denial of the COA

and argued the district judge failed to address all the claims he had raised in his

initial § 2254 petition, because he had been required to eliminate claims to meet

the page limit. We denied his motion for reconsideration.

B. Second § 2254 Petition

      In April 2016, Hartman filed a second § 2254 petition and again sought to

challenge his 2005 Florida Convictions. In his petition, he asserted manifest

injustice, because his trial attorney, whom he stated represented both him and his

codefendant, had conspired with the prosecutor to arrange for his codefendant to

testify against him. He contended his counsel was ineffective and this collusion

prejudiced him, because the government had no additional evidence connecting

him to the crime.

      Without requiring a response from the government, a magistrate judge

issued an R&R recommending the dismissal of Hartman’s petition. The magistrate

judge noted Hartman previously had filed a § 2254 petition challenging the same

convictions and that petition had been denied on the merits. He further observed

Hartman filed a new habeas petition in state court while his initial federal § 2254

proceedings were ongoing, but he had not sought to stay or dismiss his initial §


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2254 petition. The magistrate judge determined Hartman was required to seek

authorization from this court before he could file a second § 2254 petition and

recommended the district judge dismiss the petition for lack of jurisdiction.

       Hartman objected to the R&R and asserted his claim was not procedurally

barred. On May 18, 2016, the district judge overruled Hartman’s objections,

adopted the R&R, and dismissed Hartman’s § 2254 petition for lack of jurisdiction,

because he had failed to obtain authorization from this court to file a second § 2254

petition. The judge noted Hartman had addressed manifest injustice in his

objections to the R&R but had failed to present any argument to suggest he could

proceed without authorization from this court.

       Two days after the district judge dismissed his petition, Hartman filed an

application for leave to file a second or successive § 2254 petition in this court and

sought to raise the manifest-injustice claim based on his trial counsel’s alleged

collusion with the prosecutor. Before this court ruled on his application, on June

10, 2016, Hartman filed a notice of appeal from the dismissal of his second § 2254

petition. On June 17, 2016, this court denied Hartman’s application for leave to

file a second or successive § 2254 petition.1 Order, In re Hartman, No. 16-12723

(11th Cir. June 17, 2016).


1
  We concluded Hartman had failed to show his claim previously could not have been discovered
through due diligence or, but for the alleged conspiracy, no reasonable factfinder would have
found him guilty on the underlying crimes.
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      On appeal, Hartman argues his trial counsel colluded with the prosecution.

He contends this was a manifest injustice, and his claim should not be procedurally

barred. He also requests leave to file a second or successive § 2254 petition.

                                 II. DISCUSSION

      We review de novo whether a petition for a writ of habeas corpus is second

or successive. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011). A

state prisoner who wants to file a second or successive habeas corpus petition must

move “the appropriate court of appeals” for an order authorizing the district judge

to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Absent an order, the district

judge lacks jurisdiction to entertain the petition and must dismiss it. Hubbard v.

Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004).

      Both of Hartman’s § 2254 petitions challenge his 2005 Florida convictions

for armed robbery, attempted robbery with a weapon, battery, and false

imprisonment. Hartman failed to obtain authorization from this court before filing

his second petition in the district court. Consequently, the district judge lacked

jurisdiction to hear the claims and was required to dismiss his petition. See id.

While Hartman asserts he still may raise this claim, because he sought to raise it as

an amendment to his initial § 2254 petition, the district-court docket does not

include an entry for a motion to amend his petition, and Hartman previously did

not argue the judge failed to address a motion to amend.


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      Hartman also requests leave to file a second or successive § 2254 petition.

He, however, previously had filed an application for leave to file a second or

successive § 2254 petition in May 2016 and raised counsel’s alleged conflict of

interest and conspiracy with the prosecutor. We denied Hartman’s application,

because he failed to meet the requirements of § 2244(b)(2). Order, In re Hartman,

No. 16-12723. Therefore, his request for leave is moot.

      AFFIRMED.




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