Garnsey v. Tucker

Filing 5

ORDER adopting 4 Report and Recommendations; dismissing 1 Petition for Writ of Habeas Corpus filed by Dale B. Garnsey. Certificate of Appealability is DENIED. Case is CLOSED. Signed by Judge James I. Cohn on 2/29/2012. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-60108-CIV-COHN/WHITE
DALE B. GARNSEY,
Petitioner,
v.
KENNETH TUCKER,
Respondent.
_________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon the Report and Recommendation [DE 4]
of United States Magistrate Judge Patrick A. White. The Court notes that Petitioner
Dale B. Garnsey has not filed any objections to the Report and Recommendation, and
the time for filing objections has passed.
Even though no timely objections were filed, the Court has conducted a de novo
review of the Report and Recommendation, Mr. Garnsey’s Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody [DE 1] (“Petition”), the
record in this case, and is otherwise fully advised in the premises. Judge White
recommends dismissal under 28 U.S.C. § 2244(b)(3), because Mr. Garnsey’s Petition is
successive, and there is no indication that Mr. Garnsey obtained an order from the
appropriate court of appeals authorizing this Court to consider his Petition.1 This
undersigned agrees with Judge White.
As Judge White notes, Mr. Garnsey already filed a petition for writ of habeas
corpus, in Case No. 01-7525-Civ-Hurley, and his petition was dismissed as time barred
on January 8, 2002. Also, this Petition is barred by the one-year statute of limitations

1

Section 2244 precludes successive applications for writs of habeas
corpus. See 28 U.S.C. § 2244(a). The statute provides that “[b]efore a second or
successive application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. § 2244(b)(3).

provided by 28 U.S.C. § 2244. Judge White already provided Mr. Garnsey with a form
to apply for authorization to pursue this case. Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
1.

The Report and Recommendation [DE 4] is hereby ADOPTED;

2.

Petitioner Dale B. Garnsey’s Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody [DE 1] is DISMISSED as
successive under 28 U.S.C. § 2244(b)(3);

3.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, Mr.
Garnsey is hereby DENIED a certificate of appealabilty because he has
not shown “that jurists of reason would find it debatable whether the
petition states a valid claim of denial of a constitutional right, and that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478
(2000). Pursuant to Rule 22(b)(1) of the Federal Rules of Appellate
Procedure, Mr. Garnsey may request issuance of a certificate of
appealability from the Eleventh Circuit;

4.

Any pending motions are DENIED as moot, and the Clerk of Court is
directed to CLOSE this case.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 29th day of February, 2012.

Copy sent via CM/ECF regular mail to:
Dale B. Garnsey , pro se
DC # 060905
Avon Park Correctional Institution
P.O. Box 1100
Avon Park, FL 33826-1100
2