Opinion
Case No. 1:05-cv-00075-MP-WCS.
May 17, 2006
ORDER
This matter is before the Court on Doc. 17, Report and Recommendations of the Magistrate Judge, recommending that Respondent's motion to dismiss, Doc. 9, be granted and the petition for writ of habeas corpus, Doc. 2, be dismissed as a second or successive petition under 28 U.S.C. § 2254. The Magistrate Judge filed the Report and Recommendation on Friday, April 14, 2006. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Plaintiff has filed objections to the Magistrate's report, Doc. 18. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
In his objections, the Petitioner contends that this court should entertain this second § 2254 petition. However, as the Magistrate correctly points out, Rule 9 of 28 U.S.C. § 2254 provides that "[b]efore presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4)." Furthermore, 28 U.S.C. § 2244(b)(3)(A) states that "[b]efore a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Petitioner has failed to obtain authorization from the court of appeals prior to filing this motion. Therefore, this Court is without jurisdiction to consider the Petitioner's motion. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. This action is DISMISSED, and the clerk is directed to close the file.DONE AND ORDERED.