James Edward Wallace v. Attorney General of the State of…

       USCA11 Case: 20-10789    Date Filed: 10/15/2020     Page: 1 of 3



                                                           [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10789
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 7:18-cv-01389-KOB-GMB

JAMES EDWARD WALLACE,

                                                         Petitioner-Appellant,

                                      versus

ATTORNEY GENERAL OF THE STATE
OF ALABAMA,
WARDEN, III,

                                                     Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                           (October 15, 2020)

Before WILSON, ROSENBAUM and NEWSOM, Circuit Judges.

PER CURIAM:
            USCA11 Case: 20-10789     Date Filed: 10/15/2020    Page: 2 of 3



      James Wallace, proceeding pro se, appeals the district court’s order

dismissing his 28 U.S.C. § 2254 petition to vacate his sentence. The state has

responded by filing a motion for summary affirmance and to stay the briefing

schedule.

      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).

      Under the provisions of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a prisoner is

generally entitled to file only one § 2254 petition. See 28 U.S.C. § 2244(b). When

a prisoner has previously filed a § 2254 petition, he must apply for permission from

the appellate court before filing a second or successive § 2254 petition.

Id. § 2244(3)(A). Absent the appellate court’s permission, the district court lacks

jurisdiction to address the motion, and it must be dismissed. Burton v. Stewart, 549

U.S. 147, 152-53 (2007).


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           USCA11 Case: 20-10789       Date Filed: 10/15/2020   Page: 3 of 3



        Here, there is no substantial question that Wallace filed an unauthorized and

successive § 2254 petition. See Groendyke Transp., Inc, 406 F.2d at 1162.

Wallace previously filed a § 2254 petition, challenging the same convictions,

before filing the instant petition without demonstrating permission from this Court

to file a second or successive petition. Therefore, the district court lacked

jurisdiction to address Wallace’s petition. See Burton, 549 U.S. at 152-53.

Accordingly, because there is no substantial question that the district court

properly dismissed Wallace’s petition as an unauthorized successive petition, we

GRANT the state’s motion for summary affirmance and DENY as moot the state’s

motion to stay the briefing schedule. See Groendyke Transp., Inc, 406 F.2d at

1162.




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