Romero v. Ford

Filing 6

ORDER ADOPTING 3 Report and Recommendations of the Magistrate Judge and dismissing Petitioner's § 2254 petition. Petitioner's 2 Motion for Leave to Proceed in forma pauperis is denied as moot. Further, the Court denies COA in this case and finds that Petitioner is not entitled to proceed ifp on appeal. This case stands closed. Signed by Chief Judge J. Randal Hall on 11/16/2017. (pts)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

GERSON AYALA ROMERO,
Petitioner,
CV 117-132

v.

BENJAMIN FORD,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed (doc. no. 5).
Petitioner provides no information to change the Magistrate Judge's analysis that the

petition, filed pursuant to 28 U.S.C. § 2254, must be dismissed because Petitioner has filed a
successive application for a federal writ of habeas corpus without first obtaining the requisite

authorization from the Eleventh Circuit Court of Appeals.

Only one objection warrants

specific comment.

The argument that a petitioner need not obtain permission from the Eleventh Circuit

to proceed when a prior petition has been dismissed for failing to exhaust claims in state
court has no applicability here because Petitioner's first federal petition was dismissed as
untimely under the one-year statute of limitations in 28 U.S.C. § 2244(d). See Romero v.

Ford, CV 116-170, doc. nos. 7, 9, 10 (S.D. Ga. Nov. 16, 2016). Dismissal of a habeas corpus

petition for untimeliness constitutes an adjudication on the merits for purposes of

§ 2244(b)(3)'s second or successive petition requirements. See Patterson v. Sec'y, Fla. Dep't

of Corr.. 849 F.3d 1321, 1325 (11th Cir. 2017).
Accordingly, the Court OVERRULES the objections and ADOPTS the Report and
Recommendation of the Magistrate Judge as its opinion. Therefore, the Court DENIES AS
MOOT the motion to proceed in forma pauperis, (doc. no. 2), and DISMISSES this
petition.

A prisoner seeking relief under § 2254 must obtain a certificate of appealability

("COA") before appealing the denial of his application for a writ of habeas corpus. This
Court "must issue or deny a certificate of appealability when it enters a final order adverse to

the applicant." Rule 11(a) to the Rules Governing Section 2254 Proceedings. This Court

should grant a COA only if the prisoner makes a "substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and
Recommendation, and in consideration of the standards enunciated in Slack v. McDaniel

529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite showing.

Accordingly, the Court DENIES a COA in this case.1 Moreover, because there are no nonfrivolous issues to raise on appeal, an appeal would not be taken in good faith, and Petitioner
is not entitled to appeal informa pauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this /&> day ofNovember, 20J^T^u^^^^Qrgia.

J. RAM^HALlYCHIEF JUDGE
UNITEDfiTATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

*"If the court denies a certificate, the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2254 Proceedings.
2