Lee v. Giles et al (INMATE 2)

Filing 12

ORDERED and ADJUDGED that the 5 Recommendation of the Magistrate Judge be and is hereby ADOPTED, that the petition for habeas corpus relief be and is hereby DENIED, and that this case be and is hereby DISMISSED in accordance with the provisions of 28 USC 2244(b)(3)(A). Signed by Honorable Truman M. Hobbs on 4/27/2009. (wcl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O RT H E R N DIVISION R A S H A D CORTEZ LEE, #213823, P e titio n e r, v. J .C . GILES, WARDEN, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:09cv234-TMH (WO) O P I N I O N and ORDER O n March 27, 2009, the Magistrate Judge filed a Recommendation in this case re c o m m e n d in g that the petition of habeas corpus relief filed pursuant to 28 U.S.C. 2254 b e dismissed as the Petitioner failed to obtain the requisite order from the Eleventh Circuit C o u rt of Appeals authorizing a federal district court to consider his successive habeas a p p lic a tio n . (Doc. # 5). Petitioner has filed no objection to the Recommendation of the M ag istrate Judge, but has filed an "application for a certificate of appealability" (Doc. #6), f ro m the Magistrate Judge's recommendation. The Magistrate Judge's recommendation is n o t appealable, and, thus, does not divest the court of jurisdiction to adopt the R e c o m m e n d a tio n , see United States v. Kapelushnik, 306 F.3d 1090, 1094 (11 th Cir. 2002) (h o ld in g that "a premature notice of appeal does not divest the district court of jurisdiction o v e r the case"). Because the appeal is premature, the certificate of appealability will be d e n ie d by separate Order. Upon an independent review of the file in this case and upon c o n s id e r a tio n of the Recommendation of the Magistrate Judge, it is O R D E R E D and ADJUDGED that the Recommendation of the Magistrate Judge be a n d is hereby ADOPTED, that the petition for habeas corpus relief be and is hereby D E N IE D , and that this case be and is hereby DISMISSED in accordance with the provisions o f 28 U.S.C. 2244(b)(3)(A). D o n e this 27th day of April 2009. /s / Truman M. Hobbs TRUMAN M. HOBBS S E N IO R UNITED STATES DISTRICT JUDGE 2

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