Summary
concluding that, where a prior habeas corpus petition is dismissed on statute of limitations grounds, it constitutes an adjudication on the merits, and the petitioner must obtain authorization from the court of appeals to file a subsequent petition for habeas corpus relief
Summary of this case from Golden v. WardenOpinion
Case Number: 1:09cv107.
September 25, 2009
ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate Judge Timothy S. Black filed on August 26, 2009 (Doc. 11), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed.R.Civ.P. 72(b) expired September 16, 2009, hereby ADOPTS said Report and Recommendation.
Accordingly, respondent's motion to dismiss the petition (Doc. 10) is DENIED because the Court lacks jurisdiction over the matter.
Respondent's alternative motion to transfer (Doc. 10) is GRANTED and petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is TRANSFERRED pursuant to 28 U.S.C. § 1631 to the United States Court of Appeals for the Sixth Circuit for consideration whether the district court may review the petition in accordance with 28 U.S.C. § 2244(b).
Petitioner's motions to expand the record and for an evidentiary hearing (Docs. 2 and 3) is DENIED as moot.
IT IS SO ORDERED.