              Case: 19-13326     Date Filed: 04/07/2020    Page: 1 of 5



                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-13326
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 0:09-cv-60303-WJZ

JEFNEY PHILISTIN,

                                                                Petitioner-Appellant,

                                       versus

WARDEN,

                                                               Respondent-Appellee.

                           ________________________

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

                                   (April 7, 2020)

Before LUCK, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Jefney Philistin, a pro se Florida state prisoner, appeals from the denial of his

post-judgment motions challenging the adjudication of his 28 U.S.C. § 2254 petition,

claiming that the district court mistakenly failed to hold an evidentiary hearing to
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examine the state court’s failure to have Philistin’s competency examined by

multiple experts. This is not the first time Philistin has challenged the state court

competency decision in a § 2254 petition. In 2009, Philistin filed his first § 2254

petition, arguing that the trial court erred by not evaluating his competency to stand

trial. In 2016, Philistin filed a series of motions to amend, supplement, or reconsider

his original § 2254 petition, which the district court denied as untimely and

inappropriate. On appeal of that order, we construed Philistin’s motions collectively

as an application to file a second or successive habeas petition and affirmed the

district court, concluding that the district court lacked subject matter jurisdiction

over Philistin’s 2016 application. In 2018, Philistin again filed numerous motions

to amend, supplement, or reconsider his original § 2254 petition, and the district

court again denied this round of motions as being untimely and inappropriate. In the

instant appeal of that order, Philistin argues that the district court fundamentally

erred and violated his Due Process rights by failing to hold an evidentiary hearing to

complete the evidentiary record concerning the state court’s competency evaluation,

that there was substantial evidence that he was incompetent, and that the magistrate

judge fraudulently falsified the record by stating that there was no record evidence

that he was incompetent to stand trial. After careful review, we affirm.

      We review de novo the district court’s subject matter jurisdiction. Zakrzewski

v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). We also review de novo


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whether a petition for a writ of habeas corpus is successive, and, thus, whether the

district court lacked jurisdiction to consider it without prior authorization. Patterson

v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th Cir. 2017).

      A state prisoner who has previously filed a § 2254 petition in federal court

must obtain authorization from this Court before filing a “second or successive”

collateral attack on the same conviction. 28 U.S.C. § 2244(b)(3)(A). Without

authorization, the district court lacks jurisdiction to consider a successive § 2254

petition and must dismiss the claims presented therein. Id. § 2244(b)(4); Tompkins

v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1259 (11th Cir. 2009). A § 2254 petition is

“second or successive” if the petitioner filed a prior § 2254 petition attacking the

same judgment that was denied or dismissed with prejudice. Guenther v. Holt, 173

F.3d 1328, 1329 (11th Cir. 1999). We look beyond the label of a prisoner’s filing to

determine if he is, in substance, seeking relief under § 2254. See Franqui v. Florida,

638 F.3d 1368, 1374-75 (11th Cir. 2011) (construing a state prisoner’s Rule 60(b)

motion as a successive habeas petition). A claim presented in a second or successive

habeas corpus application under § 2254 that was presented in a prior application

shall be dismissed. 28 U.S.C. § 2244(b)(1).

      When a petitioner’s motion does not raise a claim based on the merits of his

§ 2254 petition, however, that motion should not be treated as a successive habeas

petition. Gonzalez v. Crosby, 545 U.S. 524, 533 (2005) (holding that a Rule 60(b)


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motion challenging a district court’s application of the statute of limitations was not

successive); see also Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir.

2007) (holding that a Rule 60(b) motion alleging only fraud upon the court was not

successive under Gonzalez). Nevertheless, a petitioner’s lack of diligence in raising

a procedural error in a Rule 60(b) motion weighs negatively against reversal. See

Gonzalez, 545 U.S. at 537-38. A Rule 60(b) motion must be brought “within a

reasonable time,” or, if the motion is based on Rule 60(b)(1)-(3), “no more than a

year after the entry of the judgment.” Fed. R. Civ. P. 60(c).

      In this appeal, Philistin appears to argue, once again, the merits of his original

2009 habeas petition by challenging the district court’s failure to expand the state

court record concerning his competency. That is, by asking for an evidentiary

hearing on the district court’s reading of the state court record, Philistin seeks to

force the district court to reexamine its previous decision that the state court did not

err in its determination that he was competent to stand trial. Therefore, Philistin

again has raised the merits of the claim presented in his original habeas petition by

asking for an evidentiary hearing, and the district court lacked subject matter

jurisdiction to consider that claim. See 28 U.S.C. § 2244(b)(3)(A) (providing that a

petitioner must receive this Court’s permission to file a second or successive habeas

petition); Guenther, 173 F.3d at 1329.




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      Moreover, even if we were to broadly construe Philistin’s motions as a

collective Rule 60(b) motion to reopen that does not challenge the merits of his §

2254 petition, his motions are untimely. See Fed. R. Civ. P. 60(c) (noting that Rule

60(b) motions must be brought within a reasonable time). It has been eight years

since the district court denied Philistin habeas relief. An eight-year delay in

challenging the district court’s failure to hold an evidentiary hearing is not “a

reasonable time.” See id. Accordingly, we affirm.

      AFFIRMED.




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