NOLES v. CREWS

Filing 23

ORDER adopting the magistrate judge's 17 Report and Recommendation. Respondent's 13 Motion to Dismiss is GRANTED. This habeas petition is DISMISSED without prejudice for lack of jurisdiction. Petitioner's 22 Motion to Issue Certificate of Appealability is DENIED. Signed by CHIEF JUDGE M CASEY RODGERS on 12/6/2013. (djb)

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Page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION TIMOTHY E. NOLES, Petitioner, v. Case No.: 3:13cv130/MCR/EMT MICHAEL D. CREWS, Respondent. ___________________________/ ORDER This cause comes on for consideration upon the Magistrate Judge’s Report and Recommendation dated October 16, 2013. (Doc. 17). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). The Court has made a de novo determination of any timely filed objections (doc. 21).1 Having considered the Report and Recommendation and timely filed objections, the Court concludes that the Report and Recommendation should be adopted. Additionally, having reviewed the Motion to Issue Certificate of Appealability (doc. 22), the Court finds that it is due to be denied. Accordingly, it is now ORDERED as follows: 1. The magistrate judge’s Report and Recommendation is adopted and incorporated by reference in this order. 2. Respondent’s motion to dismiss (doc. 13) is GRANTED. 3. This habeas action is DISMISSED without prejudice for lack of jurisdiction. 1 In particular, the Court has considered Petitioner’s argum ents regarding the retroactivity of the holding in Martinez v. Ryan, 132 S. Ct. 1309 (2012), which Petitioner asserts the Magistrate Judge failed to address. The Court finds that Martinez offers him no avenue of relief. See Jones v. Ryan, 733 F.3d 825, 843 (9th Cir. 2013) (concluding Martinez does not apply retroactively), cert. denied, 134 S. Ct. 503 (2013); see also Crutsinger v. Stephens, No. 12-70014, 2013 W L 5227078, at *6 (5th Cir. 2013) (unpublished) (sam e). Page 2 of 2 4. Petitioner’s Motion to Issue Certificate of Appealability (doc. 22) is DENIED. DONE AND ORDERED this 6th day of December, 2013. M. Casey Rodgers M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE Case No: 3:13cv130-/MCR/EMT

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