Opinion
5:15-cv-00201-BSM-JTK
06-23-2015
BILLY RAY SCOTT ADC #76695 PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
The following recommended disposition has been sent to United States District Court Chief Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
DISPOSITION
Mr. Billy Ray Scott filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (Doc. No. 2.) Mr. Coleman already filed a petition for habeas corpus relief relating to his current incarceration on April 9, 1992. Scott v. Lockhart, No. 5:92-cv-00221-HLJ, ECF #2 (Apr. 9, 1992). This Court does not have jurisdiction to hear successive petitions for habeas corpus relief unless the petitioner moves "in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(3)(A) (2006). Therefore, Mr. Scott's petition for habeas corpus relief should be DENIED without prejudice. Mr. Coleman must move for the Eighth Circuit to authorize the Court to consider any further applications.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, the District Court must determine whether to issue a certificate of appealability in its final order. In § 2254 cases, a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2) (2006). The Court finds no issue on which Mr. Scott has made a substantial showing of a denial of a constitutional right. Thus, the District Court should not issue a certificate of appealability.
IT IS SO ORDERED this 23rd day of June, 2015.
/s/_________
United States Magistrate Judge