SETTS v. MCNEIL

Filing 6

REPORT AND RECOMMENDATION TO DISMISS 2254 PETITION re 1 Petition for Writ of Habeas Corpus filed by BURT SETTS :It is therefore respectfully RECOMMENDED that the § 2254 petition doc. 1 be SUMMARILY DISMISSED as an unauthor ized second or successive § 2254 petition, and that a certificate of appealability be denied in the event of an appeal. Internal deadline for referral to district judge if objections are not filed earlier: 10/15/2008.. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 09/17/08. (dlt)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

BURT SETTS, Petitioner, vs. WALTER A. McNEIL, Respondent. / REPORT AND RECOMMENDATION TO DISMISS � 2254 PETITION This cause is before the court on order of transfer from the Pensacola Division of this district. Doc. 4. Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. � 2254. Doc. 1. The filing fee has not yet been paid, nor has Petitioner submitted a motion to proceed in forma pauperis. Petitioner challenges his 1983 conviction and sentence for second degree murder and sexual battery. Doc. 1, p. 1. The judgment was imposed in the Second Judicial Circuit, Gadsden County. Id. The trial court case number, as reflected in various exhibits, was 82-412. See e.g., doc. 1-2, pp. 2, 18, 20, and 26. Case No. 4:08cv367-MP/WCS

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Petitioner has already filed a � 2254 petition challenging the judgment out of the Second Circuit, Gadsden County, case 82-412. Setts v. Singletary, 4:94cv40381RH/WCS. The petition was denied and judgment was entered on the docket on February 28, 1997. Docs. 24, 26 and 27 in that case.1 This is therefore a second or successive petition, and Petitioner must obtain authorization from the Eleventh Circuit before filing it in this court. 28 U.S.C. � 2244(b)(3)(A); � 2254 Rule 9 ("[b]efore presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. � 2244(b)(3) and (4)."). It is noted that Petitioner has previously attempted, unsuccessfully, to file unauthorized petitions challenging the same state court judgment. Setts v. Mecusker, 4:03cv203-RH/WCS (docs. 6, 8 and 9, dismissing � 2254 petition); Setts v. Crosby, 4:05cv77-WS/WCS (docs. 8 and 9), dismissing purported Fed.R.Civ.P. 60(b) motion as an unauthorized second or successive petition). The Eleventh Circuit has at least twice denied authorization for filing a second or successive motion. 4:03cv203, doc. 10 (order filed October 21, 2003); and 4:05cv77, doc. 17 (order filed July 6, 2005).

The docket of that case is available electronically but, given the age of it, the documents were not scanned into the docket. The physical file was sent to archives.
Case No. 4:05cv77-WS/WCS

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It is therefore respectfully RECOMMENDED that the � 2254 petition (doc. 1) be SUMMARILY DISMISSED as an unauthorized second or successive � 2254 petition, and that a certificate of appealability be denied in the event of an appeal. IN CHAMBERS at Tallahassee, Florida, on September 17, 2008.

s/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.

Case No. 4:05cv77-WS/WCS