CLARK v. MCLAUGHLIN

Filing 9

OPINION AND ORDER APPROVING and ADOPTING 6 Final Report and Recommendation and DENYING a Certificate of Appealability. This action is hereby DISMISSED and the Clerk is DIRECTED to close this case. Signed by Judge Mark H. Cohen on 11/27/2017. (sap)

IN T H E UNITED STATES DISTRICT COURT
F O R T H E NORTHERN DISTRICT OF G E O R G I A
ATLANTA DIVISION

CURTIS LAMAR C L A R K ,

HABEAS CORPUS
28 U.S.C. § 2254

Petitioner,
V.

GREGORY MCLAUGHLIN,
C I V I L ACTION F I L E
NO. l:17-CV-4267-MHC

Respondent.

ORDER
This pro se prisoner habeas corpus petition is before the Court on the
Magistrate Judge's Final Report and Recommendation ("R&R") [Doc. 6] that the
petition be dismissed as impermissively successive. The Order for Service of the
R&R [Doc. 7] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the
parties were authorized to file objections within fourteen (14) days of the receipt of
that Order. Within the time period for filing objections, Petitioner filed his
objections to the R&R [Doc. 8^.
In reviewing a Magistrate Judge's R&R, the district court "shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties

filing objections to a magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive, or general objections
need not be considered by the district court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548
(11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the district
court judge "may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate [judge]," 28 U.S.C. § 636(b)(1), and
"need only satisfy itself that there is no clear error on the face of the record" in
order to accept the recommendation. FED. R. CiV. P. 72, advisory committee note,
1983 Addition, Subdivision (b). Further, "the district court has broad discretion in
reviewing a magistrate judge's report and recommendation" - it "does not abuse its
discretion by considering an argument that was not presented to the magistrate
judge" and "has discretion to decline to consider a party's argument when that
argument was not first presented to the magistrate judge." Williams v. McNeil,
557 F.3d 1287, 1290-92 (11th Cir. 2009).
Petitioner previously filed a § 2254 petition challenging his November 1,
2000, Fulton County convictions, and the Court denied the petition. Clark v.
McLaughlin, No. 1:1 l-CV-4486-MHS-RGV (N.D. Ga. Aug. 17, 2012). The
instant petition is therefore successive, in violation of the Antiterrorism and
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Effective Death Penahy Act ("AEDPA"), which provides, "[b]efore a second or
successive appHcation 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)(A). In his
objections, Petitioner merely reasserts the merits of his constitutional claims,
which he contends he could not have raised in his initial § 2254 petition.
Petitioner, however, does not state that he has sought from the Eleventh Circuit an
order authorizing a successive habeas action, as required by AEDPA. The R&R
correctly concludes, therefore, that this Court lacks jurisdiction over the instant
petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding that district
court lacked jurisdiction to entertain second habeas petition since prisoner did not
obtain authorization from the court of appeals before filing it).
Having conducted a careful review of the R&R and Petitioner's objections
thereto, the Court finds that the Magistrate Judge's factual and legal conclusions
were correct and that Petitioner's objections have no merit. Accordingly, the R&R
"Doc. 6] is hereby APPROVED AND ADOPTED as the Opinion and Order of
this Court. It is hereby ORDERED that this action is DISMISSED under Rule 4
of the Rules Governing Section 2254 Cases in the United States District Courts

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because it is a successive § 2254 petition and that a Certificate of Appealability is
DENIED.
The Clerk is directed to close the case.
I T IS SO ORDERED this 27th day of November, 2017.

MARK H. COHEN
United States District Judge

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