DEWITT v. STATE OF FLORIDA

Filing 70

AMENDED ORDER ACCEPTING AND ADOPTING RECOMMENDED ORDERS - The report and recommendation, ECF No. 44 , is accepted and adopted, over Petitioner's objections, as this Court's opinion. The writ of habeas corpus, ECF No. [ 5], as supplemented and amended, is DENIED. The Magistrate Judge's recommended orders, ECF Nos. 54 , 57 , and 60 , are accepted and adopted as this Court's opinions. Petitioner's motions to supplement and/or amend to add suppleme ntal claims, ECF Nos. 47 and 48 , and Petitioner's motion for reconsideration, ECF No. 53 , are DENIED. Petitioner's Emergency Motion to Voluntarily Dismiss his Initial § 2254 Petition, ECF No. 56 , and his Second Emergency Mo tion to Voluntarily Dismiss his Initial § 2254 Petition, ECF No. 58 , are DENIED. The motions, ECF Nos. 62 and 63 , are DENIED. The Clerk shall enter judgment stating, "The petition for writ of habeas corpus, ECF No. 5 , as supplemented and amended, is DENIED. A certificate of appealability is DENIED and leave to appeal in forma pauperis is DENIED." The Clerk shall close the file. Signed by JUDGE MARK E WALKER on 11/6/2017. (cle)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
STEVEN R. DEWITT,
Petitioner,
v.

Case No. 4:15cv433-MW/CAS

STATE OF FLORIDA,
Respondent.
___________________________/
AMENDED ORDER ACCEPTING
AND ADOPTING RECOMMENDED ORDERS
Petitioner filed Written Objections and Supplemental Written Objections on
November 1, 2017, ECF Nos. 67 and 68. (ECF No. 66 is a duplicate filing of
ECF No. 67) This Court then entered its Order Withdrawing Order and Judgment
(ECF Nos. 64 and 65) in order to consider Petitioner’s objections. ECF No. 69.
This Court having now considered Petitioner’s objections de novo finds as follows:
Petitioner filed his § 2254 petition with this Court on October 19, 2015. ECF
No. 5. The Magistrate Judge entered his Report and Recommendation on May 16,
2017, in which Petitioner was afforded the opportunity to file any objections he may
have to the report. ECF No. 31. Petitioner moved for leave to amend or supplement
his § 2254 petition, ECF No. 32, and for reconsideration of the report and
recommendation, ECF No. 33, on May 24, 2017. On June 2, 2017, Petitioner filed
objections to the report and recommendation. ECF No. 35. The Magistrate Judge
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granted Petitioner’s motions for reconsideration and to amend or supplement his §
2254 petition and vacated his prior report and recommendation, ECF No. 31, on May
31, 2017. ECF No. 34.
Petitioner then filed his Motion Requesting Leave to Supplement Argument
to Ground Two in his Initial § 2254 Petition, ECF No. 36, and his Motion
Supplementing Argument to Ground Two in his Initial § 2254 Petition, ECF No. 37,
on June 7, 2017. The Magistrate Judge granted Petitioner’s motions on June 9, 2017.
ECF No. 38.
The Magistrate Judge entered his Report and Recommendation on August 7,
2017, ECF No. 44, in which Petitioner was afforded the opportunity to file any
objections he may have to the report. Petitioner filed objections to the report and
recommendation on September 1, 2017, ECF No. 49, prior to this Court’s acceptance
of the report and recommendation, along with his Notice of Appeal. ECF No. 50.
Further, on September 5, 2017, Petitioner filed his Motion for Reconsideration of
the Magistrate Judge’s Report and Recommendation. ECF No. 53. Thus Petitioner
has filed objections, a notice of appeal, and a motion for reconsideration all related
to the Magistrate Judge’s report and recommendation. Additionally, Petitioner filed
his Second Motion Requesting Leave to Amend and/or Supplement his Initial § 2254
Petition and his Second Motion Amending and/or Supplementing his Initial § 2254
Petition with supplemental claims. ECF Nos. 47 and 48. On September 7, 2017, the
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Magistrate Judge entered his Order on Petitioner’s Motion to Amend or Supplement
and Motion for Reconsideration. ECF No. 54.
Petitioner filed an Emergency Motion to Voluntarily Dismiss his Initial §
2254 Petition, ECF No. 56, on September 15, 2017. The Magistrate Judge entered
his Recommended Order on Petitioner’s motion, ECF No. 57, on September 19,
2017. And again, on September 25, 2017, Petitioner filed an additional Emergency
Motion to Voluntarily Dismiss his § 2254 Petition Prior to Ruling. ECF No. 58. The
Magistrate Judge entered his Recommended Order on Petitioner’s Second Motion
to Voluntarily Dismiss his § 2254 Petition Prior to Ruling, ECF No. 60, on October
5, 2017.
On October 10, 2017, this Court ordered Petitioner to file any and all
objections he may have to the Magistrate Judge’s pending reports and
recommendations on or before October 23, 2017. ECF No. 61. Petitioner filed no
objections, but instead moved for reconsideration of the Magistrate Judge’s Report
and Recommendation, ECF No. 62, and again moved for leave to supplement his
initial § 2254 petition with additional claims, ECF No. 63.
The fact that Petitioner filed a Notice of Appeal, ECF No. 50, on an order not
subject to appeal—the Magistrate Judge’s Report and Recommendation, ECF No.
44—does not divest this Court of jurisdiction to address the four pending orders of
the Magistrate Judge, ECF Nos. 44, 54, 57, and 60. Moreover, on September 28,
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2017, the Eleventh Circuit issued its mandate dismissing Petitioner’s appeal. ECF
No. 59.
This Court has considered, without hearing, (1) the Magistrate Judge's Report
and Recommendation to Deny Petitioner’s § 2254 Petition, ECF No. 44, (2) the
Magistrate Judge’s Recommended Order on Petitioner’s Motion to Amend or
Supplement and Motion for Reconsideration, ECF No. 54, (3) the Magistrate Judge’s
Recommended Order on Petitioner’s Motion to Voluntarily Dismiss his § 2254
Petition Prior to Ruling, ECF No. 57, and (4) the Magistrate Judge’s Recommended
Order on Petitioner’s Second Motion to Voluntarily Dismiss his § 2254 Petition
Prior to Ruling, ECF No. 60, and has also reviewed de novo Petitioner’s objections
to the report and recommendation, ECF No. 49.
In addition to the foregoing, this Court has considered, without hearing,
Petitioner’s Motion for Reconsideration, ECF No. 62, and Petitioner’s Motion
Requesting Leave to Supplement his Initial § 2254 Petition, ECF No. 63.
Accordingly,
IT IS ORDERED:
1. The report and recommendation, ECF No. 44, is accepted and adopted,
over Petitioner’s objections, as this Court’s opinion. The writ of habeas
corpus, ECF No. 5, as supplemented and amended, is DENIED.

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2. The Magistrate Judge’s recommended orders, ECF Nos. 54, 57, and 60,
are accepted and adopted as this Court’s opinions. Petitioner’s motions
to supplement and/or amend to add supplemental claims, ECF Nos. 47 and
48, and Petitioner’s motion for reconsideration, ECF No. 53, are DENIED.
Petitioner’s Emergency Motion to Voluntarily Dismiss his Initial § 2254
Petition, ECF No. 56, and his Second Emergency Motion to Voluntarily
Dismiss his Initial § 2254 Petition, ECF No. 58, are DENIED.
3. The motions, ECF Nos. 62 and 63, are DENIED.
4. The Clerk shall enter judgment stating, “The petition for writ of habeas
corpus, ECF No. 5, as supplemented and amended, is DENIED. A
certificate of appealability is DENIED and leave to appeal in forma
pauperis is DENIED.”
5. Petitioner may file a Notice of Appeal, if he wishes to do so, on or before
30 days after entry of this Order.
6. The Clerk shall close the file.
SO ORDERED on November 6, 2017.
s/Mark E. Walker
____
United States District Judge

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