Baine v. Mitchum

Filing 59

ORDER ADOPTING 57 REPORT AND RECOMMENDATION. Pet's 56 MOTION for Relief from Judgment is DISMISSED for lack of jurisdiction to the extent it is an unauthorized second or successive habeas petition, & it is otherwise DENIED. Further, Baine is not entitled to a certificate of appealability, & the Court certifies that any appeal by Baine would not be taken in good faith, & he is not entitled to proceed in forma pauperis. Signed by Senior Judge Callie V. S. Granade on 3/21/2017. (copy mailed to Pet on 3/21/17) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARK A. BAINE,
Petitioner,
v.
GUY NOE, Warden,
Decatur Community Based Facility/
Community Work Center,
Respondent.

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CIVIL ACTION NO. 10-00334-CG-N

ORDER
After due and proper consideration of the issues raised, and a de novo determination
of those portions of the recommendation to which objection is made, the Report and
Recommendations (Doc. 57) of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B)(C), Federal Rule of Civil Procedure 72(b)(1), Rule 8(b) of the Rules Governing § 2254 Cases
in the United States District Courts, and S.D. Ala. GenLR 72(a)(2)(R) & (S), and dated
October 26, 2016, is ADOPTED as the opinion of this Court with one addition. In his
Objection (Doc. 58), Petitioner faults the Report and Recommendation for failure to address
a fourth claim of “fraud upon the court committed by the representative for the
Respondent.” (Doc 58 at 2). This claim also fails because it was untimely and is also closely
linked with “Reason 2” addressed in the Report and Recommendation.
Accordingly, it is ORDERED that Petitioner Mark A. Baine’s Motion for Relief from
Judgment under Federal Rule of Civil Procedure 60(b) (Doc. 56) is DISMISSED for lack of
jurisdiction to the extent it is an unauthorized second or successive habeas petition, and
that it is otherwise DENIED. It is further ORDERED that Baine is not entitled to a
certificate of appealability. Finally, the Court certifies that any appeal by Baine of this

Order would be without merit and therefore not taken in good faith. Thus, Baine is not
entitled to proceed in forma pauperis on appeal. 1
DONE and ORDERED this the 21st day of March, 2017.

/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

Judgment by separate document is unnecessary as to this Order. See Fed. R. Civ. P.
58(a)(5).
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