Jerome (NMN) Allen v. Secretary, Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14168
Non-Argument Calendar
____________________
JEROME (NMN) ALLEN,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-01623-CEM-DCI
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2 Opinion of the Court 22-14168
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Before WILSON, ROSENBAUM , and G RANT, Circuit Judges.
PER CURIAM:
Jerome Allen, a Florida state prisoner proceeding with coun-
sel, appeals the district court’s dismissal of his 28 U.S.C. § 2254 pe-
tition for lack of jurisdiction as untimely and successive. Instead of
addressing the district court’s dismissal for lack of jurisdiction, Al-
len’s retained counsel argues only the merits and underlying con-
stitutional claims in his case, failing to address the jurisdictional is-
sue.1
Issues not raised on appeal are deemed forfeited. United
States v. Campbell, 26 F.4th 860, 872–73 (11th Cir. 2022) (en banc).
An appellant fails to adequately brief a claim when he does not
“plainly and prominently raise it.” Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (quotation marks omit-
ted). Here, Allen has forfeited any claim that the district court
erred in dismissing his Section 2254 petition as successive, as he
does not raise any arguments on appeal challenging this determi-
nation. See id.
A barred attorney retained by a prisoner seeking relief from
a state court judgment is expected to understand and adhere to
1 Although not required to file a reply brief, Allen’s counsel did not do so de-
spite that being an opportunity to address the specific jurisdictional arguments
that Florida brought up in its response brief.
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22-14168 Opinion of the Court 3
state2 and federal habeas requirements. This court is troubled by
the failure of Allen’s counsel to do so. As explained by the district
court, Allen’s 2019 resentencing was imposed nunc pro tunc, so his
amended sentence was not a “new judgment” for the purposes of
Section 2244. See Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261,
1266 (11th Cir. 2020). Accordingly, his 2021 Section 2254 petition
was successive to his 1998 and 2001 Section 2254 petitions concern-
ing the same judgment. And as Allen’s counsel should know, a pe-
titioner must receive authorization from this court prior to filing a
successive habeas petition. See 28 U.S.C. § 2244(b)(3). Allen’s
counsel filed this successive habeas petition without authorization,
thus requiring the district court to dismiss it.
AFFIRMED.
2 Allen may have filed a successive motion for postconviction relief in Florida
state court pursuant to Florida Rule of Criminal Procedure 3.850(h).
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