                Case: 16-11149     Date Filed: 09/21/2017   Page: 1 of 5


                                                               [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 16-11149
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 1:15-cv-24595-FAM



FRANK YOUNG,

                                                    Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                    Respondent - Appellee.

                             ________________________

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

                                 (September 21, 2017)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

         Frank Young, a Florida state prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as an unauthorized
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second or successive petition. Mr. Young argues that the district court erred by

dismissing his numerically-second § 2254 petition for lack of subject-matter

jurisdiction. Upon review of the record and the parties’ briefs, we affirm.

                                                I

       In November of 2013, Mr. Young filed an amended initial § 2254 petition

challenging his 2010 Florida convictions for armed burglary, aggravated assault,

and shooting or throwing a deadly missile into an occupied building. A magistrate

judge construed the petition as raising 13 claims for relief, and recommended

dismissing Mr. Young’s petition because 12 of the claims were unexhausted and

procedurally defaulted with no procedural mechanism available for exhaustion in

state court. As to the remaining claim, the magistrate judge found that it was not

cognizable in a federal habeas petition. Over Mr. Young’s objections, the district

court adopted the magistrate’s report and recommendation and denied the petition. 1

       Mr. Young did not appeal the district court’s order and instead returned to

state court to appeal the denial of his post-conviction motions. The state appellate

court issued a per curiam order affirming the lower court’s decision in September

of 2015.

       In December of 2015, Mr. Young filed a second § 2254 petition challenging

his 2010 Florida convictions. A magistrate judge issued a report recommending
1
 Mr. Young tried to appeal the magistrate judge’s report and recommendation in March of 2015.
We dismissed the appeal for lack of subject-matter jurisdiction and indicated that he could file a
new notice of appeal from the district court’s order adopting the report and recommendation.
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dismissal for lack of subject-matter jurisdiction because Mr. Young had already

filed a § 2254 petition challenging the same convictions (and raising the same

claims) and did not seek authorization to file the second petition. The district court

adopted the report and recommendation and dismissed the petition.

      Mr. Young now appeals.

                                         II

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

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

order to file a second or successive habeas corpus petition, a state prisoner must

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

to consider the [petition].” 28 U.S.C. § 2244(b)(3)(A). Otherwise, a district court

lacks jurisdiction to consider the petition and is required to dismiss it.        See

Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). Although a dismissal

of a successive habeas petition for lack of subject-matter jurisdiction does not

constitute a “final order in a habeas corpus proceeding,” we may review the

dismissal under 28 U.S.C. § 1291. See id.

      Here, both of Mr. Young’s § 2254 petitions challenge the same 2010

convictions. Mr. Young is correct that a dismissal of a § 2254 petition without

prejudice would have allowed him to file a numerically-second § 2254 petition, see

Dunn v. Singletary, 168 F.3d 440, 441 n.2 (11th Cir. 1999), but that is not what


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happened in this case. Instead, the magistrate judge concluded that all of the

cognizable claims were unexhausted and procedurally defaulted because any

attempt to exhaust the claims would be futile, see Bailey v. Nagle, 172 F.3d 1299,

1302–03 (11th Cir. 1999), and that Mr. Young had failed to show cause or

prejudice. Although the magistrate judge recommended dismissal, the district

court adopted the report and denied Mr. Young’s petition. See D.E. 36.

      We conclude that the only way to interpret the district court’s denial here is

as an adjudication on the merits. Every other circuit that has considered the

application of a similar procedural bar has held that “a denial on grounds of

[unexcused] procedural default constitutes a disposition on the merits and thus

renders a subsequent § 2254 petition or § 2255 motion ‘second or successive’ for

purposes of the AEDPA.” See Henderson v. Lampert, 396 F.3d 1049, 1053 (9th

Cir. 2005) (citation omitted). See also Graham v. Costello, 299 F.3d 129, 133 (2d

Cir. 2002) (highlighting the difference between an unexhausted claim and

unexcused procedural default); Harvey v. Horan, 278 F.3d 370, 379–80 (4th Cir.

2002) (holding that “a dismissal for procedural default is a dismissal on the

merits”), abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521 (2011);

In re Cook, 215 F.3d 606, 608 (6th Cir. 2000) (same). Cf. Bates v. Whitley, 19

F.3d 1066, 1067 (5th Cir. 1994) (concluding, pre-AEDPA, that denial of a claim

due to “state procedural default and a failure to show cause and prejudice must be


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regarded as a determination on the merits”); Hawkins v. Evans, 64 F.3d 543, 547

(10th Cir. 1995) (same); Shaw v. Delo, 971 F.2d 181, 184 (8th Cir. 1992) (same).

        As a result, we agree that Mr. Young’s second § 2254 petition was properly

considered an unauthorized second or successive habeas corpus petition. Because

Mr. Young did not seek approval to file that petition, the district court properly

dismissed it for lack of subject-matter jurisdiction. See Hubbard, 379 F.3d at

1247.

        AFFIRMED.




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