Frank v Oliver

Filing 19

ORDER ADOPTING the 11 REPORT AND RECOMMENDATIONS. The Court's 12 Order Adopting the Report and Recommendations and 13 Judgment are vacated. It is ordered that the petition is dismissed for lack of jurisdiction. The motions (Docs. 7, 8), a re moot. The Court certifies that any appeal of the dismissal would be without merit. Petitioner is not entitled to proceed in forma pauperis on appeal. Petitioner's 18 MOTION to subpoena records is denied. Signed by Chief Judge William H. Steele on 1/19/2017. Copy mailed to Petitioner. (nah)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION DAVID LEE FRANK, Petitioner, v. NOAH PRICE OLIVER, etc., Respondent. ) ) ) ) ) CIVIL ACTION 16-0362-WS-N ) ) ) ) ORDER After the Court entered an order adopting the report and recommendation (“R&R) entered by the Magistrate Judge, (Doc. 11), as the opinion of the Court and entering judgment against the petitioner, (Docs. 12, 13), the petitioner filed a motion for additional time to object to the R&R, on the grounds he had not received that document. (Doc. 14). The Court granted the motion and provided the petitioner until January 10, 2017, to file his objections. (Doc. 16). The petitioner has now filed his objections. (Doc. 17). He has also filed a motion to subpoena records from the underlying state criminal proceedings in 1992 and 1995. (Doc. 18). Because the Court provided the petitioner additional time to object, and because the petitioner timely filed objections, the Court’s order adopting the R&R, and its judgment, are vacated. The Court has now fully considered the petitioner’s objections, which do not address the plainly correct conclusion of the R&R that this is a second or successive petition, which the Court has no jurisdiction to consider due to the petitioner’s failure to obtain advance permission from the Eleventh Circuit to pursue it. For the same reason, the petitioner’s motion to subpoena records must be, and is, denied. After due and proper consideration of the issues raised, and considering de novo those portions of the R&R to which objection has been made, the R&R is again adopted as the opinion of this Court. Accordingly, it is ordered that the petition is dismissed for lack of jurisdiction and that his pending motions, (Docs. 7, 8), are therefore moot. The Court also certifies that any appeal by the petitioner of this dismissal would be without arguable merit and therefore not taken in good faith. Thus, the petitioner is not entitled to proceed in forma pauperis on appeal. DONE and ORDERED this 19th day of January, 2017. s/WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE 2

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