Case: 16-13814 Date Filed: 08/10/2016 Page: 1 of 3
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13814-J
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IN RE: LESLIE PARKER,
Petitioner.
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Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
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Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.
B Y T H E P A N E L:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Leslie Parker filed a
request seeking an order authorizing the district court to consider a second or
successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C.
§ 2255. On July 7, 2016, this Court granted his request. Subsequently, however,
one member of the panel learned of a conflict requiring recusal. As a result, we
must vacate and decide anew Parker’s request to file a successive § 2255 motion in
district court.
Case: 16-13814 Date Filed: 08/10/2016 Page: 2 of 3
In the intervening time between the July 7 order and now, we issued In re
Baptiste, No. 16-13959 (11th Cir. July 13, 2016). Under In re Baptiste, a later
request of a prisoner who has previously filed a request for authorization to file a
second or successive petition based on the same claim, must be dismissed.
Because Parker has already filed a request presenting a claim based on Johnson v.
United States, 576 U.S. __, 135 S. Ct. 2551 (2015), we must dismiss his current
request, regardless of its merit, since it raises the same claim as his first request.
APPLICATION DISMISSED.
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Case: 16-13814 Date Filed: 08/10/2016 Page: 3 of 3
ROSENBAUM, Circuit Judge, with whom JILL PRYOR, Circuit Judge joins,
concurring:
I agree that In re Baptiste, No. 16-13959, __ F.3d __, 2016 WL 3752118
(11th Cir. July 13, 2016), requires us to dismiss Leslie Parker’s request for
authorization to file a second or successive habeas petition. I write separately
because I continue to believe that Baptiste’s interpretation of 28 U.S.C. §
2244(b)(1) to prohibit us from considering a successive request for authorization to
file a second or successive habeas petition where a prior request for authorization
raising the same claim was denied, is incorrect as a matter of law. See In re Jones,
No. 16-14053, ___ F.3d ___, 2016 WL 4011143 (11th Cir. July 27, 2016). Section
2244(b)(1) simply contains no such limitation. See id. As for § 2244(b)(3)(E), it
likewise says nothing about successive requests for authorization. And, where we
know that, as a matter of law, we have incorrectly denied a prior request for
authorization under the abbreviated 30-day gatekeeping procedure required by
AEDPA, we should be able to correct our error and provide the petitioner with a
real opportunity to have his case considered on the merits. Anything less flirts
with violating the Suspension Clause.
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