                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 11-15549                   APRIL 16, 2012
                        Non-Argument Calendar               JOHN LEY
                      ________________________               CLERK


               D.C. Docket No. 3:11-cv-00759-HWM-JRK


CARL MARION WELLS,

                                                          Plaintiff-Appellant,

                                 versus

ATTORNEY GENERAL, STATE OF FLORIDA,

                                                        Defendant-Appellee.


                     ________________________

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

                            (April 16, 2012)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
       Carl Marion Wells, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his complaint under 42 U.S.C. § 1983 without prejudice for

failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1). In his complaint, Wells

challenged the constitutionality of the state statutes under which he was convicted

and sentenced. The district court dismissed Wells’s complaint because it sought

habeas relief and because it was a second or successive 28 U.S.C. § 2254 petition, as

Wells had unsuccessfully sought habeas relief in federal district court before. On

appeal, Wells argues that: (1) there was no basis for the district court’s determination

that he sought habeas relief in his present complaint because he was not suing the

state of Florida and was not challenging his conviction or sentence, but instead was

challenging the constitutionality of specific Florida statutes; (2) he was not allowed

adequate time to argue his claims before the district court dismissed them, (3) the

court should have held an evidentiary hearing with respect to his claims, and (4) the

court denied him due process when it cited cases in its order that Wells did not have

access to. After thorough review, we affirm.1

       Under 28 U.S.C. § 1915A, the court shall determine “as soon as practicable”

whether a prisoner’s complaint that seeks redress from a government official “is


       1
         Further, because Wells's motion has no bearing on the resolution of the instant appeal,
his request to have the Florida Department of Corrections return his six active case files is
DENIED.

                                                2
frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28

U.S.C. § 1915A(a), (b)(1). We review de novo a district court’s sua sponte dismissal

of a prisoner’s complaint under 28 U.S.C. § 1915A(b)(1). Leal v. Ga. Dep’t of Corr.,

254 F.3d 1276, 1278-79 (11th Cir. 2001). We review de novo whether the district

court properly exercised jurisdiction over a claim. Williams v. Chatman, 510 F.3d

1290, 1293 (11th Cir. 2007). “Pro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”

Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (quotation omitted).

      A prisoner convicted and sentenced under state law may seek federal relief in

two primary ways: (1) a petition for habeas corpus, 28 U.S.C. § 2254, or (2) a

complaint under 42 U.S.C. § 1983. Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.

2006). These two avenues of relief are mutually exclusive. If a claim can be raised

in a federal habeas petition, that same claim cannot be raised in a § 1983 civil rights

complaint. Id. The line of demarcation between a § 1983 claim and a § 2254 habeas

claim is based on how the claim relates to a prisoner’s conviction or sentence. Id.

“[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact

or duration of his confinement and seeks immediate or speedier release.” Abella v.

Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995) (quotation omitted). Thus, declaratory

or injunctive relief claims that challenge the validity of the prisoner’s conviction or

                                          3
sentence and seek release are cognizable only through a § 2254 petition, and not

under § 1983. Id.

      If the district court determines that a § 1983 claim does challenge the

lawfulness of the prisoner’s conviction or sentence, then the court must treat the

prisoner’s claim as though raised under § 2254, and it must apply the Anti-terrorism

and Effective Death Penalty Act’s (“AEDPA”) procedural and exhaustion

requirements to the claim. Hutcherson, 468 F.3d at 754. Where the complaint,

construed as though brought under § 2254, is a second or successive petition for a

writ of habeas corpus, the district court must dismiss the complaint for lack of

jurisdiction unless the prisoner has obtained an order authorizing the district court to

consider it. 28 U.S.C. § 2244(b)(3)(A); see Hutcherson, 468 F.3d at 755 (holding

that, where a § 1983 action qualifies as a second or successive § 2254 petition, it must

comply with the AEDPA’s requirements for such petitions, and determining that a

prisoner’s petition failed to satisfy the requirements under 28 U.S.C. § 2244(b)); see

also Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (noting that §

2244(b)’s provisions are jurisdictional in the context of applying the provisions to a

Fed.R.Civ.P. 60(b) motion construed as a habeas petition).

      In this case, the district court did not err in dismissing Wells’s claims

challenging the Florida statutes under which he was convicted and sentenced because

                                           4
the claims effectively were a challenge to the validity of his conviction and sentence

and were not cognizable under § 1983. Abella, 63 F.3d at 1066. Further, because

Wells had previously sought habeas relief, this action, if construed as a petition for

habeas relief, would be a second or successive petition. Since Wells has not obtained

an order from us authorizing the district court to consider Wells’s habeas claims, the

district court correctly determined that it was without jurisdiction to consider Wells’s

complaint. See Williams, 510 F.3d at 1295.2 Thus, the district court did not err in

dismissing Wells’s complaint.3

       Wells also argues that the district court deprived him of due process by not

allowing him adequate time to argue his claims and asserts that the court improperly

dismissed his complaint without holding an evidentiary hearing. However, pursuant

to 28 U.S.C. § 1915A(a) and (b)(1), the court was within its authority to sua sponte



       2
         Although there is a possibility that Wells’s 1992 petition was dismissed without
prejudice, there is no such indication on the docket sheet regarding his prior habeas case.
However, Wells has not alleged any facts or made any arguments in his motion to reconsider or
in his appellate brief contesting the district court’s determination that his petition is a second or
successive petition.
       3
          To the extent Wells is seeking only prospective relief by having the district court declare
the challenged statutes unconstitutional, it is unclear how Wells would have standing. Standing
for Article III purposes requires a plaintiff to provide evidence of an injury in fact. Dermer v.
Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010). In order to challenge the
constitutionality of a criminal statute, a plaintiff must demonstrate “an actual and well-founded
fear that the law will be enforced against him.” Id. (quotation and alteration omitted). The only
plausible injury related to the constitutionality of the challenged statutes is with respect to
Wells’s current confinement, which, as discussed above, he cannot challenge through § 1983.

                                                   5
dismiss Wells’s amended complaint “as soon as practicable after docketing” on the

basis of his complaint and without the consideration of additional arguments. See

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (holding that due

process does not always require notice and the opportunity to be heard before

dismissal, and upholding a court’s sua sponte dismissal under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim). Moreover, the district court’s reliance

on unpublished cases in its order dismissing his case did not deprive Wells of access

to the courts or of any due process right because the court did nothing to prevent him

from bringing his § 1983 action. See Cunningham, 592 F.3d 1273-74 (holding that

the doctrine of access to the courts does not impose a duty to do something to allow

a prisoner to litigate effectively or to “help bolster [the prisoner’s] chances of

success” in court); Bank of Jackson Cnty. v. Cherry, 980 F.2d 1362, 1366 (11th Cir.

1993) (holding that, for procedural due process rights to be violated, a plaintiff must

establish a deprivation of a protected interest in life, liberty, or property).

Accordingly, we affirm.

      AFFIRMED.




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