Opinion
Case No. 3:07-cv-1027-WKW.
February 28, 2008
ORDER
On November 29, 2007, the Magistrate Judge filed a Recommendation (Doc. # 4) to which the petitioner timely objected. (Doc. # 5.) The instant petition represents Dean Eric Mahone's third attempt to challenge his 2001 attempted murder conviction. In his objection, the petitioner incorrectly argues that because his first habeas petition was dismissed as time-barred, "it was never adjudicated on the merits" and is therefore not a successive petition. ( Id.) See Villenueva v. United States, 346 F.3d 55, 59-61 (2d Cir. 2003), cert. denied, 542 U.S. 928 (2004) (holding "that a habeas or § 2255 petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes"). Furthermore, when affirming the dismissal of his second habeas petition, the Eleventh Circuit held "[t]he district court properly dismissed appellant's § 2254 petition as an impermissible second or successive petition filed without prior authorization from this Court." Mahone v. Thomas, No. 07-14156 (11th Cir. Dec. 12, 2007.)
Therefore, upon an independent and de novo review of the file in this case and upon consideration of the Recommendation of the Magistrate Judge, it is ORDERED that:
1. The Recommendation (Doc. # 4) is ADOPTED;
2. The plaintiff's application for habeas corpus relief is DISMISSED without prejudice;
3. This case is DISMISSED without prejudice.
An appropriate judgment will be entered.