Opinion
Civil Action 3:23-cv-00052-TES-CHW
12-01-2023
AVERY BRADFORD Petitioner, v. WARDEN TARMARSHE SMITH, Respondent.
ORDER ADOPTING THE UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
TILMAN E. SELF, III, JUDGE
Before the Court is the United States Magistrate Judge's Report & Recommendation (“R&R”) [Doc. 17] to grant Respondents' Motion to Dismiss [Doc. 12] for lack of jurisdiction and to dismiss without prejudice Petitioner Avery Bradford's Petition for Writ of Habeas Corpus [Doc. 1] brought pursuant to 28 U.S.C. § 2254.
Because Petitioner did not file an objection to the R&R within the prescribed time period, the Court now reviews the R&R for clear error. See 28 U.S.C. § 636(b)(1)(C ) in connection with Fed.R.Civ.P. 6(a)(1) & (d).
The magistrate judge recommended dismissal on the following grounds: Petitioner's current habeas petition arises out of the same conviction underlying his previously dismissed federal habeas petition. [Doc. 17, p. 1]; see Order Adopting Report and Recommendations, Bradford v. Perry, No. 3:19-cv-00016-CAR-CHW (M.D. Ga. Feb. 13, 2020), ECF No. 33. In other words, the instant petition is a successive petition under § 2244(b), and Petitioner needs an order from the Eleventh Circuit authorizing this Court to consider it. See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009). The magistrate judge recommended dismissal because Plaintiff had not sought permission from the Circuit, and therefore, this Court lacks jurisdiction. [Doc. 17, p. 2].
Since the magistrate judge issued the R&R, however, new information has been made apparent to this Court. In Petitioner's previous § 2254 case, Petitioner did seek permission to file a successive petition, and on November 21, 2023, the Eleventh Circuit denied it. USCA Order Denying Application for Leave to File a Second or Successive Habeas Corpus Petition, Bradford v. Perry at 3, No. 3:19-cv-00016-CAR-CHW (M.D. Ga. Nov. 21, 2023), ECF No. 52. As a result, this Court lacks jurisdiction to consider Petitioner's successive petition. 28 U.S.C. § 2244(b)(3)(A).
Therefore, despite this Court's slight difference in reasoning in light of this new information, the Court ADOPTS the magistrate judge's R&R and MAKES IT THE ORDER OF THE COURT. Accordingly, the Court GRANTS Respondents' Motion to Dismiss [Doc. 12] and DISMISSES Petitioner Avery Bradford's Petition for Writ of Habeas Corpus [Doc. 1] without prejudice.
The Court also DENIES as moot Petitioner's Motion to Appoint Counsel [Doc. 18].
SO ORDERED.