Frank v Oliver

Filing 12

ORDER ADOPTING the 11 REPORT AND RECOMMENDATIONS. It is ORDERED that David Lee Frank's operative Petition for a Writ of Habeas Corpus (Doc. 5) is DISMISSED for lack of jurisdiction as an unauthorized second or successive petition. The motion s (Docs. 7, 8) are MOOT. The Court certifies that any appeal of the dismissal would be without merit. Frank is not entitled to proceed in forma pauperis on appeal. Signed by Chief Judge William H. Steele on 11/3/2016. Copy mailed to Petitioner. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID LEE FRANK,
Petitioner,
v.
NOAH PRICE OLIVER, Warden,
Mobile County Metro Jail,
Respondent.

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CIVIL ACTION NO. 16-00362-WS-N

ORDER
After due and proper consideration of the issues raised, and there having been no
objections filed, the Report and Recommendations of the Magistrate Judge made under 28
U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing § 2254 Cases in the United States
District Courts, and S.D. Ala. GenLR 72(a)(2)(R), and dated October 4, 2016, is ADOPTED as
the opinion of this Court.
Accordingly, it is ORDERED that Petitioner David Lee Frank’s operative Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 5) is DISMISSED for lack of jurisdiction
as an unauthorized second or successive petition and that his pending motions (Docs. 7, 8) are
therefore MOOT. The Court also certifies that any appeal by Frank of the dismissal of the
present habeas petition would be without merit and therefore not taken in good faith. Thus,
Frank is not entitled to proceed in forma pauperis on appeal.
DONE and ORDERED this the 3rd day of November, 2016.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE