           Case: 15-15709    Date Filed: 11/14/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15709
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cv-81447-KAM



TULIO RIVERA,

                                                           Petitioner-Appellant,

                                 versus

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

                                                       Respondents-Appellees.

                       ________________________

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

                            (November 14, 2016)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
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PER CURIAM:

      Tulio Rivera, a Florida state prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 federal habeas corpus petition as an

unauthorized second or successive § 2254 petition. Because Rivera previously

filed a § 2254 petition challenging the same judgment, that petition was

adjudicated on the merits, and Rivera failed to obtain authorization from this Court

before filing his current petition in district court, we affirm the district court’s

dismissal.

                          I.     FACTUAL BACKGROUND

      This case represents the fourth time Rivera has filed under § 2254 a federal

habeas corpus petition challenging his 1982 Florida conviction for two counts of

first degree murder and three counts of attempted first degree murder. In 1983,

Rivera filed his first petition for habeas corpus relief in federal district court

challenging his conviction. The district court dismissed the petition without

prejudice because Rivera had not yet exhausted his state remedies.

      In 1984, Rivera filed a second petition for habeas corpus relief in federal

district court challenging his conviction. Because Rivera had exhausted his state

court remedies, the district court considered the merits of his petition and

ultimately denied relief. We affirmed the district court.




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      In 2008, Rivera filed a third habeas corpus petition in federal district court

challenging his conviction. The district court dismissed the petition because

Rivera had failed to obtain authorization from this Court before filing his

successive petition. Rivera did not appeal the dismissal of his third petition.

      In October 2015, Rivera filed the present § 2254 habeas corpus petition in

federal district court, again challenging his conviction. Because Rivera failed to

obtain prior authorization from this Court before filing his petition, the magistrate

judge recommended that the district court dismiss the petition. After considering

Rivera’s objection to the magistrate judge’s recommendation, the district court

adopted the magistrate judge’s recommendation and dismissed Rivera’s petition.

This is Rivera’s appeal.

                           II.   STANDARD OF REVIEW

      We review a district court’s determination that a petitioner’s habeas

application was second or successive de novo. See Stewart v. United States,

646 F.3d 856, 858 (11th Cir. 2011).

                                 III.   DISCUSSION

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214, requires that before a prisoner in custody

pursuant to a state court judgment can file a “second or successive” federal habeas

petition under § 2254, he must “move in the appropriate court of appeals for an


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order authorizing the district court to consider the application.” 28 U.S.C.

§ 2244(b)(3). If a petitioner fails to obtain such prior authorization before filing a

second or successive application, the district court must dismiss the petition for

lack of jurisdiction. Magwood v. Patterson, 561 U.S. 320, 330 (2010).

      To determine whether a prisoner’s petition is second or successive, we must

look to whether the petitioner previously filed a federal habeas petition challenging

the same judgment. Insignares v. Sec’y, Fla. Dept. of Corr., 755 F.3d 1273, 1278

(11th Cir. 2014). If a previous § 2254 petition was dismissed as premature or for

failure to exhaust, the dismissal was not on the merits and a later petition is not

considered second or successive. See Stewart v. Martinez-Villareal, 523 U.S. 637,

644-45 (1998) (explaining that “the dismissal of a first habeas petition for technical

procedural reasons” does not “bar the prisoner from ever obtaining federal habeas

review”); Dunn v. Singletary, 168 F.3d 440, 441 (11th Cir. 1999) (“When an

earlier habeas corpus petition was dismissed without prejudice, a later petition is

not ‘second or successive’ for purposes of § 2244(b).”).

      Rivera’s § 2254 petition in this case qualifies as a second or successive

habeas petition. In 1984, Rivera filed a habeas corpus petition in federal district

court challenging the same state court judgment that he attacks in this action. After

considering his 1984 petition, the district court denied relief on the merits, and we

affirmed. Because Rivera failed to obtain leave from our Court before filing his


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successive petition, the district court properly dismissed it.

                                 IV.    CONCLUSION

      For the reasons set forth above, we affirm the district court.

      AFFIRMED.




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