Opinion
Case No.: 2:18-cv-00705-RDP-JHE
06-29-2018
KENNEDY MINNIFIELD, Petitioner, v. TONG, WARDEN, et al., Respondents.
MEMORANDUM OPINION
On June 13, 2018, the Magistrate Judge entered a Report and Recommendation, (doc. 9), recommending that the petition for writ of habeas corpus be dismissed without prejudice as successive. Petitioner has filed objections, (Doc. 11), and a separate notice, (Doc. 12). The court has considered the entire file in this action, together with the report and recommendation, and has reached an independent conclusion that the report and recommendation is due to be adopted and approved.
In his objections, Petitioner argues there is no statute of limitations on a claim of innocence. (Doc. 11). Petitioner's notice continues the theme of his innocence. (Doc. 12). However, the petition is due to be dismissed not because it is time-barred, but because it is successive. While a claim of actual innocence potentially allows a district court to hear a time-barred habeas petition, it does not allow a petitioner to circumvent the statutory restrictions on second or successive petitions. See In re Bolin, 811 F.3d 403, 411 (11th Cir. 2016). As the Magistrate Judge stated, the only way that a district court has jurisdiction to consider a second or successive habeas petition is when the petitioner has previously obtained authorization from the Eleventh Circuit to file one. Petitioner has not obtained such authorization. Therefore, the Magistrate Judge correctly concluded this court lacks jurisdiction over the petition and that it is due to be dismissed without prejudice
Accordingly, the court hereby adopts and approves the findings and recommendation of the Magistrate Judge as the findings and conclusions of this court. The petition for writ of habeas corpus is due to be DISMISSED. A separate Order will be entered.
DONE and ORDERED this June 29, 2018.
/s/_________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE