Opinion
Civil Action No. 99-cv-01462-ZLW-CBS.
September 30, 2008
ORDER
The matter before the Court is Petitioner's "Motion For Relief Under Rule 60 F.R.C.P. (60-b) Amended" (Doc. No. 107; Jan. 15, 2008). This motion was referred to Magistrate Judge Craig B. Shaffer pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). On July 31, 2008, the Magistrate Judge issued a Recommendation that Petitioner's motion be transferred to the United States Court of Appeals for the Tenth Circuit as a successive habeas petition or, alternatively, denied under Fed.R.Civ.P. 60(b). Petitioner did not file an objection to the Recommendation.
Recommendation Of United States Magistrate Judge (Doc. No. 103; July 31, 2008).
The Court, after careful consideration, agrees with the Magistrate Judge's analysis and conclusion that Petitioner's Motion should be treated as a second or successive habeas petition pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA). Therefore, this Court must transfer the motion to the Tenth Circuit for authorization pursuant to 28 U.S.C. § 2244(b)(3).
Spitznas v. Boone, 464 F.3d 1213, 1215-17 (10th Cir. 2006).
Since this Court does not have subject matter jurisdiction to hear the merits of Petitioner's motion, the Court does not adopt the portion of the Magistrate Judge's Recommendation entitled "IV. Rule 60(b) Motion." The remainder of the Recommendation is adopted in its entirety. Accordingly, it is
ORDERED that Petitioner's "Motion For Relief Under Rule 60 F.R.C.P. (60-b) (Amended)" (Doc. No. 107; Jan. 15, 2008) be transferred to the United States Court of Appeals for the Tenth Circuit as a successive habeas petition pursuant to 28 U.S.C. § 2244(b)(3).