Summary
finding post-conviction motion no longer "pending" after being struck by trial court until amended motion filed
Summary of this case from Green v. TuckerOpinion
Case No.: 3:11cv241/RV/MD
05-24-2012
DOUGLAS A. FISHER, Petitioner, v. KENNETH S. TUCKER, Respondent.
ORDER
This cause comes on for consideration upon the magistrate judge's Amended Report and Recommendation dated April 23, 2012 (Doc. 25). The parties have been furnished a copy of the Amended Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). No objections have been filed.
Having considered the Amended Report and Recommendation, I have determined that the Amended Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's Amended Report and Recommendation is adopted and incorporated by reference in this order.
2. Respondent's motion to dismiss (doc. 18) is GRANTED.
3. The 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1), later amended (doc. 7), challenging the conviction and sentence in State of Florida v. Fisher in the Circuit Court of Escambia County, Florida, case no. 87-CF-2905, is DISMISSED WITH PREJUDICE and the clerk is directed to close the file.
4. Certificate of appealability is DENIED.
DONE AND ORDERED this 24th day of May, 2012.
____________________________
ROGER VINSON
SENIOR UNITED STATES DISTRICT JUDGE