Michael Baysen v. Secretary, Florida Department of Corrections

Case: 16-13622 Date Filed: 09/08/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-13622
Non-Argument Calendar
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D.C. Docket No. 9:16-cv-80188-BB

MICHAEL BAYSEN,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

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Appeal from the United States District Court
for the Southern District of Florida
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(September 8, 2017)

Before HULL, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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Michael Baysen, proceeding pro se, appeals from the district court’s

dismissal of his habeas corpus petition under 28 U.S.C. § 2254. He does not

dispute that his petition was successive and required authorization from this Court.

He argues, however, that the district court should have transferred the petition to

this Court in the interest of justice.

We review questions concerning jurisdiction de novo. Williams v. Chatman,

510 F.3d 1290, 1293 (11th Cir. 2007). Under 28 U.S.C. § 2244(b), a state prisoner

who wishes to file a second or successive habeas corpus petition must move the

court of appeals for an order authorizing the district court to consider such a

petition. See 28 U.S.C. § 2244(b)(3)(A). Without such authorization, the district

court lacks jurisdiction to consider a successive § 2254 petition. Williams, 510

F.3d at 1295.

A three-judge panel of the court of appeals may grant such authorization

only if the proposed petition contains claims premised on either (1) “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable,” or (2) a “factual predicate” that “could not

have been discovered previously through the exercise of due diligence” and that,

“if proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the underlying

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offense.” 28 U.S.C. § 2244(b)(2)(A), (B). “The court of appeals may authorize

the filing of a second or successive application only if it determines that the

application makes a prima facie showing that the application satisfies the

requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y,

Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this

Court’s determination that an applicant has made a prima facie showing that the

statutory criteria have been met is simply a threshold determination).

Whenever a civil action is filed in a district court and the court finds that it

lacks jurisdiction, it shall, if it is in the interest of justice, transfer such action to

any other court in which the action could have been brought at the time it was

filed. 28 U.S.C. § 1631. It is unclear whether § 1631 authorizes a district court to

construe a successive § 2254 petition as an application for leave to file such a

petition and then to transfer the application to this Court. Guenther v. Holt, 173

F.3d 1328, 1330 (11th Cir. 1999). However, such a transfer is not required if the

petition was untimely when it was filed or if the petitioner still had ample time to

file an application, because the interests of justice would not be served by the

transfer. Id. at 1331.

Here, the interests of justice did not require transferring Baysen’s petition to

this Court, because there was no upcoming deadline or any other procedural

hindrance preventing Baysen from simply filing an application with this Court.

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Guenther, 173 F.3d at 1331. Because Baysen had not obtained authorization from

this Court to file his successive § 2254 petition, the district court properly

dismissed his petition for lack of subject-matter jurisdiction. Additionally, in this

case, Appellant previously filed a motion in this Court to file a successive petition

under § 2254—the very result he seeks in arguing that the District Court should

have transferred the instant petition to this court—and it was denied. The

Appellant neither presents a new rule of constitutional law, nor alleges facts that

could not have been found at an earlier time through the exercise of due diligence.

AFFIRMED. 1

1
Baysen’s motion for a Certificate of Appealability, Summary Reversal and Remand is denied
on all counts.
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