ALBRITTON v. ELLIS

Filing 5

ORDER ON REPORT AND RECOMMENDATION: Adopting 3 Report and Recommendation - 1 Petition is DISMISSED as an unauthorized successive petition. Clerk directed to close the file. Signed by SENIOR JUDGE MAURICE M PAUL on 6/21/2011. (jws)

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
ALEXANDER M ALBRITTON,
Petitioner,
v.

CASE NO. 1:11-cv-00014-MP-GRJ

J ELLIS,
Respondent.
_____________________________/
ORDER
This matter is before the Court on Doc. 3, the Report and Recommendation of the
Magistrate Judge, recommending that this petition be dismissed as an unauthorized successive
petition under 28 U.S.C. § 2254. The petitioner has filed objections, Doc. 4, in which he claims
that the instant petition is not successive because the first, in 1:00-cv-00099-MP-WCS, was
dismissed as untimely under the Antiterrorism and Effective Death Penalty Act, rather than on
the merits. This argument has been expressly rejected by the Eleventh Circuit. See, e.g., In re
Hutcherson, 468 F.3d 747 (11th Cir. 2006)(deeming second petition under 28 U.S.C. § 2254 to
be successive when the first was dismissed as untimely under the Antiterrorism and Effective
Death Penalty Act.) Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge is adopted and
incorporated herein. The petition in this case is dismissed as an unauthorized
successive petition. The Clerk is directed to close the file.

DONE AND ORDERED this 21st day of June, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge