                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-15995                ELEVENTH CIRCUIT
                                                                APRIL 8, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                     D. C. Docket No. 08-01736-CV-TWT-1

LAYON DEAN JEREMIAH,




                                                             Petitioner-Appellant,

                                        versus

WILLIAM TERRY,
In His Official Capacity as Warden of
Macon State Prison,

                                                           Respondent-Appellee.


                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                 (April 8, 2009)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:

      Layon Dean Jeremiah, a counseled state prisoner, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition as second or successive. After

review, we affirm.

                                I. BACKGROUND

      In 1999, Jeremiah was tried in Georgia state court on charges of kidnapping,

rape, battery, three counts of aggravated assault, two counts of possession of a

firearm during the commission of a felony and fleeing or attempting to elude a

police officer. According to the evidence presented at trial, Jeremiah’s wife, Lisa,

went to a hospital for treatment of injuries to her face and bruises on her body.

Jeremiah v. State, 250 Ga. App. 397, 397, 551 S.E. 2d 819, 822 (2001). Lisa told

her mother, Myrna Daniel, and then a police officer that Jeremiah had beaten and

sexually assaulted her. Id. Police took statements from Lisa and her mother and

charged Jeremiah with rape, battery and aggravated assault. Id. at 397-98, 551 S.E.

2d at 822. However, Jeremiah was not taken into custody that day. Id. at 398, 551

S.E. 2d at 822.

      The next day, the mother, Daniel, placed a 911 call and reported that

Jeremiah had entered her house with a shotgun, held it to Daniel’s head and forced

Lisa to leave with him. Id. Daniel gave a written statement to a responding police



                                           2
officer that Jeremiah had forced Lisa from the home. Id. Later that evening, law

enforcement observed Jeremiah and Lisa drive up to his home and secured Lisa as

she exited the car. Id. Jeremiah fled in the car and was apprehended after he

wrecked the car and was chased down on foot. Id.

      After Jeremiah was arrested, Daniel and Lisa recanted their statements to

police. Id. At trial, Lisa refused to testify, asserting Fifth Amendment and marital

privileges. Id. The trial court also granted Jeremiah’s motion in limine and

excluded Lisa’s pre-trial statements. Id. Daniel testified that her pre-trial

statements were false “and that she had been trying to break up [Jeremiah’s]

relationship with her daughter.” Id. at 399, 551 S.E 2d at 823. The jury convicted

Jeremiah of kidnapping, battery, two counts of aggravated assault, fleeing or

attempting to elude an officer and possession of a firearm during the commission

of a felony, but acquitted Jeremiah of rape, aggravated sodomy and one count of

aggravated assault. Id. at 397, 551 S.E. 2d at 821-22.

      With the exception of the battery conviction, Jeremiah’s convictions were

affirmed on direct appeal. Id. at 397, 551 S.E. 2d at 822. In 2002, Jeremiah filed a

state habeas petition challenging his convictions, which was denied. On October

31, 2005, Jeremiah filed his first federal habeas petition, pursuant to 28 U.S.C. §

2254, which was also denied. Both this Court and the district court denied



                                           3
Jeremiah’s request for a certificate of appealability (“COA”). In July 2007,

Jeremiah filed a motion for a new trial in the state trial court, arguing that newly

discovered evidence – the recantations of his wife and mother-in-law – showed he

was actually innocent. The state trial court denied the motion for a new trial

without holding a hearing.

      On December 27, 2007, Jeremiah filed with this Court a request for

permission to file a successive § 2254 petition. Jeremiah’s request sought to assert,

inter alia, a claim of actual innocence based on the “new discovered evidence,”

namely affidavits from his wife and mother-in-law stating that his wife was not

kidnapped and that his mother-in-law gave a fabricated statement to the police.

This Court denied Jeremiah’s request to file a successive § 2254 petition. In re

Jeremiah, No 07-15992 (11th Cir. Jan. 18, 2008).

      Nonetheless, on May 18, 2008, Jeremiah filed the instant § 2254 petition in

the district court asserting a claim of actual innocence. Citing Panetti v.

Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007), Jeremiah argued that he did not

need this Court’s permission to file his second § 2254 petition because his actual

innocence claim was based on newly discovered evidence. Attached to the second

§ 2254 petition were affidavits from his wife Lisa and her mother, Daniel. Lisa

averred that she had not been kidnapped and that she did not testify at trial because



                                           4
she asserted spousal immunity. Daniel averred that she called police and falsely

told them that Jeremiah had kidnapped his wife and that she had testified at trial

that her statements to police were false.

      Over Jeremiah’s objection, the district court adopted the magistrate judge’s

recommendation finding that the district court lacked jurisdiction because Jeremiah

had not obtained permission to file a second § 2254 petition. The district court

dismissed Jeremiah’s § 2254 petition without prejudice to his right to seek

permission with this Court to file a successive habeas petition. The district court

granted Jeremiah’s request for a COA on the issue of “whether the Petitioner is

required to obtain permission of the Court of Appeals to file a second federal

habeas corpus where he claims that newly discovered evidence establishes his

actual innocence.”

                                  II. DISCUSSION

      A state prisoner may not file a second or successive petition for a writ of

habeas corpus in the district court unless the prisoner has obtained permission from

the Court of Appeals. 28 U.S.C. § 2244(b)(3)(A). If a state prisoner files a second

or successive § 2254 petition without this authorization, the district court is

required to dismiss the petition for lack of jurisdiction “unless the petitioner has

obtained an order authorizing the district court to consider it.” Tompkins v. Sec’y,



                                            5
Dep’t of Corr., ___ F.3d ___, No. 09-10022, 2009 WL 296028, at * 1 (11th Cir.

Feb. 9, 2009), cert. denied __ S. Ct. __, No. 08-0626 (Feb. 11, 2009).1

       On appeal, Jeremiah acknowledges that this is his second § 2254 petition

and that he did not obtain permission from this Court before filing it. However,

Jeremiah argues that his claim involves newly discovered evidence of actual

innocence and falls within an exception to the “second or successive” petition bar

recognized by the Supreme Court in Panetti.

       In Panetti, the Supreme Court concluded that “[t]he statutory bar on ‘second

or successive’ applications does not apply to a Ford claim [of mental incompetency

to be executed] brought in an application filed when the claim is first ripe.” 551

U.S. at ___, 127 S. Ct. at 2855. We have rejected attempts to expand Panetti’s

narrow exception to “claims that can be and routinely are raised in initial habeas

petitions.” See Tompkins, 2009 WL 296028, at *2 (involving Gardner, Brady and

Giglio claims of trial error). As we have explained, “[t]he violation of

constitutional rights asserted in these kinds of claims occur, if at all, at trial or

sentencing and are ripe for inclusion in a first petition.” Id. Thus, Panetti does not

mean “any claim based on new evidence is not ‘ripe’ for presentation until the

evidence is discovered, even if that discovery comes years after the initial habeas


       1
        “We review de novo a district court’s dismissal of a federal habeas petition.” Melson v.
Allen, 548 F.3d 993, 996 (11th Cir. 2008).

                                                6
petition is filed.” Id. Rather, claims based on “newly discovered facts about

events that occurred before the filing of the first petition” must meet the statutory

requirements for second or successive petitions before they can proceed. Id.

       Here, Jeremiah does not raise a Ford claim of mental incompetence to be

executed. Rather, Jeremiah raises a claim of actual innocence. Jeremiah contends

that his claim was not ripe when he filed his first § 2254 petition because he had

not obtained the new evidence demonstrating his actual innocence. However, the

facts underlying Jeremiah’s claim of actual innocence existed at the time he filed

his first federal habeas petition. Under our precedent, such a claim does not fall

within the Panetti exception. Accordingly, Jeremiah was required to seek our

permission to file his successive § 2254 petition raising this claim. Jeremiah did

not do so, and, thus, the district court properly dismissed his successive § 2254

petition for lack of jurisdiction.

       To the extent Jeremiah now seeks permission to file a successive § 2254

petition raising his claim of actual innocence, we deny his request. This Court

already denied such a request when he sought permission in December 2007.

Specifically, this Court stated:

       Jeremiah asserts that his first claim relies upon newly discovered
       evidence, consisting of new testimony showing that he is actually
       innocent. Jeremiah does not allege, however, that his new evidence
       establishes constitutional error. See In re Boshears, 110 F.3d 1538,

                                           7
       1541 (11th Cir. 1997); 28 U.S.C. § 2244(b)(2)(B)(i), (ii).

In re Jeremiah, No 07-15992, slip. op. at 2 (11th Cir. Jan. 19, 2008). Furthermore,

even if Jeremiah alleged that his new evidence established constitutional error, he

could not make a prima facie showing that his application meets the statutory

requirements for asserting such a claim in a successive application. See 28 U.S.C.

§ 2244(b)(2)(B)(i) (requiring that “the factual predicate for the claim could not

have been discovered previously through the exercise of due diligence”).

Although Jeremiah contends his wife’s and mother-in-law’s affidavits constitute

new evidence of his innocence that he could not have discovered through the

exercise of due diligence, in fact, Jeremiah has known of their recantations since

before his criminal trial and certainly since before the filing of his first federal

habeas petition. Thus, his evidence is neither new nor newly discovered.2

       AFFIRMED.




       2
         We decline to address Jeremiah’s Confrontation Clause and time-bar arguments because
they are outside the scope of the COA. See Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998).

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