Opinion
Case No. 5:18-cv-237-TES-CHW
03-27-2019
RON C. EVERETT, Petitioner, v. STATE OF GEORGIA JUSTICE SYSTEM, Respondent.
Proceedings Under 28 U.S.C. § 2254 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
28 U.S.C. § 2244(b) places a "stringent" jurisdictional limitation on this Court's ability to entertain second or successive habeas corpus petitions. Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Based on that limitation, the Court previously dismissed this Section 2254 habeas action commenced by Ron C. Everett, a state prisoner, as impermissibly second or successive. (Doc. 5).
Citing Rule 52(b) of the Federal Rules of Criminal Procedure, Mr. Everett has now filed what he styles a "Petition for Plain Error Review." (Doc. 7). Mr. Everett originally submitted this petition to the Court of Appeals for the Eleventh Circuit, which forwarded it to this Court for disposition. Because Mr. Everett was convicted in a state court, the Federal Rules of Criminal Procedure are not applicable, and Mr. Everett has no right to a direct appeal to the United States Court of Appeals for the Eleventh Circuit on the basis of plain error.
The petition is in substance a collateral challenge to the judgment of a state court, contending that Mr. Everett is in custody in violation of the Constitution of the United States. The petition lists and describes what Mr. Everett contends are a number of "plain errors" made by the Georgia courts involved in adjudicating Mr. Everett's guilt on charges of robbery by force, aggravated assault, kidnapping, and elder abuse. Mr. Everett argues that these errors by the state court amount to a violation of the due process clause of the Fourteenth Amendment to the United States Constitution.
Such a petition must be filed under 28 U.S.C. § 2254, subject to the limitations on second or successive petitions set forth at 28 U.S.C. § 2244(d). The petition provides no grounds for revisiting this Court's previous ruling that Mr. Everett's Section 2254 petition is impermissibly second or successive. Because Mr. Everett's filing provides no grounds for reconsideration of the Court's prior judgment, it is RECOMMENDED that the "Petition for Plain Error Review" be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 27th day of March, 2019.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge