Opinion
Case No.: 4:17cv431/MW/EMT
10-02-2017
STEVEN R. DEWITT, Petitioner, v. STATE OF FLORIDA, Respondent.
ORDER and REPORT AND RECOMMENDATION
This cause is before the court on Petitioner's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 (ECF No. 1). Petitioner is challenging a criminal judgment entered in the Circuit Court in and for Leon County, Florida, Case No. 2007-CF-1357 (id. at 1). He asserts two claims of ineffective assistance of counsel, based upon trial counsel's failure to present testimony of two individuals, Cedric Bell and Ernestine Hayes (id. at 5, 7). Petitioner indicates that he previously filed a § 2254 petition in this court challenging the same state judgment, Case No. 4:15cv433/MW/CAS, and Petitioner states that a Report and Recommendation was entered in that case on August 7, 2017 (see id. at 9).
The docket of Case No. 4:15cv433/MW/CAS indicates that on August 7, 2017, the Magistrate Judge entered a Report and Recommendation on Petitioner's § 2254 petition (filed on October 19, 2015), and Petitioner's supplement and amendment of the petition (filed on May 21, 2017 and June 4, 2017). See Dewitt v. State of Florida, 4:15cv433/MW/CAS, Report and Recommendation, ECF No. 44 (N.D. Fla. Aug. 7, 2017). After entry of the Report and Recommendation, Petitioner again sought to amend or supplement his § 2254 petition. See id., ECF Nos. 47, 48. On September 7, 2017, the Magistrate Judge entered a Recommended Order recommending that the motion be denied. See id., ECF No. 54. Petitioner then sought to voluntarily dismiss his § 2254 petition on the ground that he wished to file a second § 2254 petition to raise three claims that had not been presented in his pending § 2254 petition. See id., ECF No. 56. On September 19, 2017, the Magistrate Judge entered a Recommendation Order recommending that Petitioner's motion to voluntarily dismiss be denied. See id., ECF No. 57. Petitioner filed another motion to voluntarily dismiss his habeas petition, in which he requested that he be permitted to file a second § 2254 petition. See id., ECF No. 58. The same day, Petitioner filed the instant § 2254 petition. The clerk of court assigned a new case number and referred the petition to the undersigned.
It appears that Petitioner may have intended that the instant § 2254 petition be filed as an attachment to his most recent motion to voluntarily dismiss filed in Case No. 4:15cv433/MW/CAS, since the documents appear to have been mailed in the same envelope, and Petitioner references a second § 2254 petition in his motion to voluntarily dismiss. Or Petitioner may have filed the instant § 2254 petition in an attempt to circumvent the Magistrate Judge's rulings in Case No. 4:15cv433/MW/CAS. Under either scenario, it is appropriate to dismiss this case and direct the clerk of court file a copy of the instant § 2254 petition as an attachment to Petitioner's pending motion to voluntarily dismiss in his still-pending habeas case, Case No. 4:15cv433/MW/CAS.
Accordingly, it is ORDERED:
The clerk of court shall file the instant § 2254 petition as an attachment to Petitioner's pending motion to voluntarily dismiss filed in Case No. 4:15cv433/MW/CAS.
And it is respectfully RECOMMENDED:
That this habeas case be DISMISSED.
At Pensacola, Florida, this 2nd day of October 2017.
/s/ Elizabeth M . Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only , and does not control . A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.