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                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10567
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:16-cv-60901-JAL



MARCUS BLACKMON,

                                              Petitioner - Appellant,

versus

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

                                              Respondents - Appellees.

                       ________________________

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

                            (January 31, 2020)

Before WILSON, JORDAN, and BRANCH, Circuit Judges.

PER CURIAM:
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      Marcus Blackmon, a prisoner proceeding pro se, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition. Mr. Blackmon contends that the

district court erred when it dismissed his petition for lack of subject-matter

jurisdiction as impermissibly second or successive. After reviewing the record and

the parties’ briefs, we affirm.

                                          I

      On September 26, 2006, Mr. Blackmon pled guilty to grand theft in a Florida

state court and received a sentence of time served. On July 8, 2008, a Florida state

jury convicted Mr. Blackmon of unlawful sexual activity with minors. During Mr.

Blackmon’s sentencing for the 2008 conviction, the state court—relying on the 2006

grand theft conviction—considered Mr. Blackmon a habitual offender and sentenced

him to 30 years in prison. Mr. Blackmon has since filed three different habeas

petitions in the district court seeking review of his 2006 and 2008 state convictions.

                                          A

      On November 21, 2012, Mr. Blackmon filed his first habeas corpus petition

challenging his 2008 state conviction (“Petition I”). The district court dismissed

Petition I without prejudice for failure to exhaust state court remedies.

      On March 3, 2015, Mr. Blackmon filed his second habeas corpus petition

challenging both his 2006 state conviction and his 2008 state sentence (“Petition




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II”). Mr. Blackmon raised six claims challenging his 2006 state conviction, and

three claims challenging the sentence for his 2008 state conviction.

      On March 14, 2016, the magistrate judge issued a report finding Petition II to

be meritless and recommended denying it and denying a certificate of appealability

(“COA”). On May 31, 2016, following Mr. Blackmon’s objections, the district court

adopted the report and denied Petition II on the merits. Mr. Blackmon sought a COA

to appeal the district court’s denial of Petition II, but we denied a COA on November

16, 2016.

                                          B

      On April 15, 2016, before filing his objections to the report and

recommendation regarding Petition II, Mr. Blackmon filed a third habeas petition

raising eleven new claims challenging his 2008 conviction (“Petition III”). Although

Petition II was still pending, the district court docketed Petition III separately from

Petition II as a new habeas corpus case and assigned a new district judge to the case.

      On April 26, 2016, the same magistrate judge issued a second report,

recommending that Petition III be dismissed as duplicative of Petition II. On July 7,

2016, the district court rejected the second report because Petition II had been denied

in May of 2016, and Petition III was therefore no longer duplicative of Petition II.

This time, the magistrate judge ordered Mr. Blackmon to file an amended Petition

III, while advising him that the amended petition would be the “sole, operative


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pleading considered in this case” and that no further amendments would be

permitted.

      On July 29, 2016, Mr. Blackmon amended Petition III. The magistrate judge

issued a third report recommending that the district court dismiss Petition III as an

unauthorized second or successive § 2254 petition and deny Mr. Blackmon a COA.

On December 3, 2018, the district court adopted the third report, ruling that Petition

III fell within the AEDPA’s bar on second or successive habeas corpus petitions

because Mr. Blackmon had failed to obtain authorization from our court to file a

second or successive habeas petition.

                                          C

      On February 11, 2019, Mr. Blackmon filed the present appeal, arguing that

the district court erred in dismissing Petition III for lack of subject-matter

jurisdiction. At the same time, he sought leave to file a second or successive habeas

corpus petition from our court, raising eight potential claims challenging his 2008

state conviction. In his motion seeking permission to file a second or successive

habeas corpus petition, Mr. Blackmon raised five claims which were substantially

similar to the claims raised in Petition III. The remaining three claims were new,

and had not previously been raised in any habeas corpus petition.

      On February 27, 2019, we issued an order denying in part and dismissing in

part Mr. Blackmon’s motion for leave to file a second or successive habeas corpus


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petition. We denied the motion as to five claims because they did not meet the

statutory criteria, as they did not rely on any new rule of law or newly discovered

evidence. We dismissed the motion as to the remaining three claims because they

were substantially similar to claims raised in “his initial habeas petition.”

                                          II

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

successive. See Ponton v. Sec’y, Fla. Dep’t of Corr., 891 F.3d 950, 952 (11th Cir.

2018).

                                           A

       Mr. Blackmon contends that the district court erred when it dismissed Petition

III for lack of subject-matter jurisdiction as impermissibly second or successive. We

agree that the district court made a mistake, but conclude that we are powerless to

correct it at this juncture.

       A second or successive § 2254 petition requires prior authorization from our

court. See 28 U.S.C. § 2244(b)(3)(A). A district court lacks jurisdiction to consider

an unauthorized second or successive § 2254 motion. See Farris v. United States,

333 F.3d 1211, 1216 (11th Cir. 2003).

       Some of our sister circuits have held that “where a new pro se petition is filed

before the adjudication of a prior petition is complete, the new petition should be

construed as a motion to amend the pending petition rather than as a successive


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application.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). See also In re

Stevenson, 889 F.3d 308, 309 (6th Cir. 2018); United States v. Sellner, 773 F.3d 927,

932 (8th Cir. 2014). Here, Mr. Blackmon filed Petition III while Petition II was still

pending. Consequently, the district court should have construed Petition III as a

motion to amend Petition II, and should not have docketed Petition III as a new

habeas corpus petition.

                                            B

      Mr. Blackmon contends that we should vacate the district court dismissal and

remand Petition III because it contains timely new claims that were unexhausted in

the state court when he filed Petition II. We disagree.

      Having concluded that the district court committed an error, we should

determine whether remanding Petition III would be futile. Cf. Whab v. United

States, 408 F.3d 116, 120 (2d Cir. 2005) (stating that even though a district court

erred in not treating a subsequent petition as second or successive, remanding to the

district court may not be an appropriate remedy). We conclude that, at this point, it

is not possible to remand to the district court with instructions to treat Petition III as

a motion to amend Petition II. Simply stated, the district court has entered a final

judgment on Petition II, and we denied Mr. Blackmon’s motion for a COA as to

Petition II in 2016. Petition II is now final and closed, and we no longer have any

jurisdiction over that matter. If we were to remand to the district court to consider


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Petition III on its own merits, this time the district court would have no choice but

to construe Petition III as second or successive because Petition II is already final.

      Mr. Blackmon, in his brief, points out that he could not bring the claims

asserted in Petition III when he filed Petition II because those claims were still

pending in state court and were unexhausted. We understand Mr. Blackmon’s

predicament, but the Supreme Court has explained that although petitioners “filing

mixed petitions may proceed with only the exhausted claims, … doing so risks

subjecting later petitions that raise new claims to rigorous procedural obstacles,”

such as the subsequent petition becoming second or successive. See Burton v.

Stewart, 549 U.S. 147, 155 (2007).

      Here, Mr. Blackmon filed Petition III—containing eleven new claims

regarding his 2008 state conviction—only after Petition II was ripe for

determination, and the magistrate judge had recommended that Petition II be denied

on its merits. Allowing Mr. Blackmon to file Petition III now containing his newly

exhausted claims “would be inconsistent with both the exhaustion requirement, with

its purpose of reducing ‘piecemeal litigation,’ and AEDPA, with its goal of

‘streamlining federal habeas proceedings.’” Id. This is particularly so because we

have already denied Mr. Blackmon permission to file a second or successive habeas

corpus petition with respect of the merits of the claims in Petition III.

                                          III


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      For the foregoing reasons, we affirm the district court’s dismissal of Mr.

Blackmon’s third § 2254 habeas petition.

      AFFIRMED.




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