Opinion
1:06-cv-156 (WLS).
December 17, 2007
ORDER
Before the Court is a Recommendation from United States Magistrate Judge Richard L. Hodge filed on November 20, 2007 (Doc. 14). It is recommended that Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be summarily dismissed as it is successive. Petitioner filed a timely objection to the Report and Recommendation on November 30, 2007. (Doc. 15).
In the Recommendation, it was found that Petitioner filed his second federal habeas petition in November 2006. Petitioner failed to obtain authorization from the Eleventh Circuit to proceed with his second federal petition, which is required under the AEDPA. In response to Defendant's Motion to Dismiss, Petitioner filed a Motion to Withdraw his petition in order to seek the necessary authorization. In his objection, Petitioner does not actually object to Magistrate Judge Hodge's Recommendation. Instead, Petitioner uses his objection as another opportunity to request a withdrawal of his petition. It is not necessary for the Court to grant Petitioner's Motion to Withdraw as a dismissal without prejudice will allow Petitioner to refile his petition after he obtains authorization from the Eleventh Circuit. Accordingly, Petitioner's objections (Doc. 15) are OVERRULED and Petitioner's Motion to Withdraw (Doc. 12) is DENIED as Moot.
Therefore, upon full review and consideration upon the record, the Court finds that said Report and Recommendation (Doc. 14) should be, and hereby is, ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein, together with the findings made, reasons stated and conclusions reached herein. Accordingly, Defendant's Motion to Dismiss (Doc. 10) is GRANTED. Therefore Petitioner's § 2254 claim is DISMISSED without prejudice. SO ORDERED.