ORDER OF DISMISSAL WITHOUT PREJUDICE

JOHN E. STEELE, District Judge.

This matter comes before the Court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Ernest Taylor ("Petitioner") on June 6, 2013 (Doc. 1). Petitioner, proceeding pro se, is presently confined at Taylor Correctional Institution in Perry, Florida. Petitioner challenges the 1992 conviction and sentence entered by the Circuit Court of the Twentieth Judicial Circuit in Lee County, Florida for robbery with a firearm (Doc. 1 at 1). Respondents filed a response to the petition, and Petitioner filed a reply to the response (Doc. Nos. 14, 20).

Upon review of the pleadings, the Court concludes that this case must be dismissed without prejudice to allow Petitioner the opportunity to seek authorization from the Eleventh Circuit Court of Appeals to file a second 28 U.S.C. § 2254 habeas petition.

I. Background

Petitioner was convicted of robbery with a firearm in the Twentieth Judicial Circuit Court for Lee County, Florida, on April 28, 1992 (Doc. 1 at 1). He was sentenced as a habitual violent felony offender to life in prison with a fifteen year minimum mandatory term. Id. at 2. Petitioner's conviction and sentence were per curiam affirmed on direct appeal. Id. at 3; Taylor v. State, 621 So.2d 1075 (Fla. 2d DCA 1993).1

On May 24, 2000, Petitioner sought federal habeas corpus relief under 28 U.S.C. § 2254 in this district court. See MDFL Case No. 2:00-cv-229-JES. The Court concluded that the petition was untimely and dismissed the petition. Id. at docket entry 27.

Petitioner filed the instant § 2254 petition on June 6, 2013 (Doc. 1).

II. Analysis

Federal courts are courts of limited jurisdiction, and may only hear cases where authorized by the Constitution or by statute. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Title 28 U.S.C. § 2244 provides, in relevant part:

28 U.S.C. § 2244 (emphasis added). Under this statute, a district court lacks jurisdiction to hear a second or successive § 2254 habeas petition absent authorization from a Court of Appeals. 28 U.S.C. § 2244(b)(3)(A).

Petitioner's first § 2254 habeas petition qualified as a first petition for the purpose of determining successor status because it was dismissed as untimely. See Candelario v. Warden, Case No. 14-11836, 2014 WL 6056234, at *2 (11th Cir. Nov. 14, 2014)(unpublished)(rejecting petitioner's argument that his § 2255 petition was not successive because the initial § 2255 motion was denied as untimely rather than on the merits and recognizing that "a second petition is successive if the first was denied or dismissed with prejudice" and that a dismissal for untimeliness is with prejudice)(citing Guenther v. Holt, 173 F.3d 1328, 1329 (11th Cir. 1999)); Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005)("[D]ismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction `second or successive' petitions under § 2244(b)."); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (a prior untimely § 2254 petition counts as a first petition because a statute of limitations bar is not a curable technical or procedural deficiency but rather operates as an irremediable defect barring consideration of the petitioner's substantive claims). Therefore, the instant petition is "second or successive" for purposes of § 2244(b)(3).

Petitioner does not allege that he obtained the requisite permission from the Eleventh Circuit Court of Appeals prior to filing the instant § 2254 petition. Rather, Petitioner argues that the claims set forth in his new petition had not arisen at the time of his first § 2254 petition and are therefore not barred from consideration (Doc. 20 at 2). This argument may be made to the Eleventh Circuit in Petitioner's application for permission to file a successive motion. See 28 U.S.C. § 2244(b)(3)(A).

Petitioner's failure to obtain permission from the Eleventh Circuit prior to filing the instant petition operates as a jurisdictional bar that precludes this Court's consideration of the merits of the petition. See 28 U.S.C. § 2244(b)(3)(A).

III. Certificate of Appealability2

Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability ("COA"). "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has not made the requisite showing in these circumstances.

Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.

Accordingly, it is now ORDERED AND ADJUDGED:

1. This case is hereby DISMISSED without prejudice. The Clerk of Court is directed to close this case, terminate any pending motions, and enter judgment accordingly.

2. The Clerk of the Court is also directed to send Petitioner an "Application for Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) by a Prisoner in State Custody" form.

DONE and ORDERED.