Opinion
Case No. 5:05CV239-SPM/MD.
February 1, 2006
ORDER
THIS CAUSE comes before the Court upon the Magistrate Judge's report and recommendation (doc. 7) dated December 30, 2005. Petitioner was furnished a copy and has filed an objection (doc. 8). Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the report and recommendation is correct and should be adopted by the Court.
The denial of Petitioner's earlier 2254 petition (case number 5:98cv135/RH/MD) on grounds of procedural default constitutes a disposition on the merits and makes the instant petition a second or successive petition. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005); Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001). Petitioner must seek permission from the Eleventh Circuit Court of Appeals before filing a second or successive petition 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is
ORDERED AND ADJUDGED:
1. The Magistrate Judge's report and recommendation (doc. 7) is adopted and incorporated by reference into this order.
2. Petitioner's 2254 petition (doc. 1) is dismissed without prejudice to Petitioner's opportunity to refile if he is granted leave from the Eleventh Circuit Court of Appeals.
3. The clerk is directed to send Petitioner the Eleventh Circuit's form application for leave to file a second or successive petition.