FLOOD v. BARNHART

Filing 39

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE re: 4 ; granting 30 Motion for Adjudication; mooting 31 Motion for Hearing; mooting 33 Motion for Certificate of Appealability. By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANDREW P. FLOOD,
Plaintiff,
v.
PATRICIA BARNHART,
Defendant,

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) Docket no. 1:12-cv-00174-NT
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ORDER AFFIRMING THE RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On July 16, 2012, the United States Magistrate Judge filed a Recommended
Decision on 28 U.S.C. § 2254 Petition. (ECF No. 4). The petitioner filed a motion for
reconsideration of the Recommended Decision on August 31, 2012, (ECF No. 11)
and filed an objection to the Recommended Decision on September 7, 2010. (ECF
No. 16). The Magistrate Judge issued a Memorandum Decision and Order on the
Motion for Reconsideration on September 27, 2012, denying the motion for
reconsideration. (ECF No. 19).
On October 9, 2012, Judge Hornby adopted the Recommended Decision of the
Magistrate Judge after de novo review. (ECF No. 25). Because the petition qualified
as a third habeas petition, Judge Hornby dismissed the case without prejudice to
the petitioner’s rights to obtain permission from the First Circuit to file a “second or

successive” petition.1 Judge Hornby noted that his ruling mooted the petitioner’s
motions for appointment of counsel and for transcripts (ECF No. 3). Judge Hornby
also denied the petitioner’s motions to amend his habeas petition (ECF No. 13) and
for an evidentiary hearing (ECF No. 8). Finally, Judge Hornby determined that no
certificate of appealability should issue because there was no substantial issue that
could be presented on appeal. Judgment was entered against the petitioner on
October 9, 2012. (ECF No. 26). On October 17, 2012, the petitioner filed a motion
for the Court to reconsider its Order Affirming the Magistrate Judge’s Decision.
Judge Hornby read the materials submitted by the Petitioner and concluded that
there was no reason to alter his earlier decision. (ECF No. 29).
On October 17, 2012, the petitioner also filed an objection to the Magistrate
Judge’s Memorandum Decision and Order on Motion for Reconsideration. On
October 23, 2012, Judge Hornby concurred with the Magistrate Judge’s Order
denying reconsideration. (ECF No. 29).
On November 1, 2012, the petitioner filed a Motion for Adjudication (ECF No.
30); Motion for a Hearing to Show Cause (ECF No. 31); and a Motion for Certificate
of Appealability (ECF No. 33). The Motion for Adjudication sought reconsideration
of all matters previously adjudicated in this case because Judge Hornby had filed an
order of recusal in one of petitioner’s related cases. On November 2, 2012, Judge

1

Flood has filed six cases in this Court stemming from the revocation of his state probation in
January of 2010: three petitions for habeas relief under 28 U.S.C. § 2254 (Flood v. Barnhart, 11-CV32; Flood v. Jones, 11-CV-281; Flood v. Barnhart, 12-CV-174), and three suits pursuant to 42 U.S.C.
§ 1983 (Flood v. Maine Dep’t. of Corrections, 11-CV-270; Flood v. Maine Dept. of Corrections, 11-CV205; Flood v. Hunter, 11-CV-303).

2

Hornby issued an order of recusal in this case2 pursuant to 28 U.S.C. § 455 and this
case was reassigned to me.
Section 455 defines the circumstances that mandate disqualification of
federal judges.3 “Section 455 does not, on its own, authorize the reopening of closed
litigation. However . . . Federal Rules of Civil Procedure 60(b) provides a procedure
whereby, in appropriate cases, a party may be relieved of a final judgment.”
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 (1988). “Both the
need for finality and a common-sense aversion to frittering scarce judicial resources
militate against an inflexible rule invalidating all prior actions of a judge
disqualified under § 455.” El Fenix de Puerto Rico v. M/Y Johanny, 36 F.3d 136, 142
(1st Cir. 1994).
The petitioner has not filed a Rule 60(b) motion but he has moved for
adjudication of “all matters in this case” in light of Judge Hornby’s recusal.
Although I do not believe that the petitioner has the right to have all prior rulings
made in this case readjudicated, out of an abundance of caution, I will consider the
merits of the petitioner’s underlying objection to the Magistrate Judge’s Report and
Recommended Decision dismissing his petition.
I have reviewed and considered the Recommended Decision, together with
the entire record. I have made a de novo determination of all matters adjudicated by
2

On October 23, 2012, Judge Hornby entered an Order of Recusal in Flood v. Maine Dept. of
Corrections, 11-CV-270, thus tipping the Petitioner off to the recusal issue prior to the filing of Judge
Hornby’s recusal order in the instant case.
3
Section 455(a) provides for disqualification in any proceeding in which a judge’s “impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). Subsection (b) lists five circumstances in which
recusal is required ranging from personal bias, to prior involvement in a case as a lawyer, to
financial interests of the judge or a family member of a judge. 28 U.S.C. §455(b). Judge Hornby did
not specify his reason for recusal.

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the Recommended Decision. I concur with the recommendations of the United
States Magistrate Judge for the reasons set forth in the Recommended Decision.
Because this third Petition qualifies as a “second or successive” petition pursuant to
28 U.S.C. § 2244(b)(3)(A), and because the petitioner has not obtained permission to
file a successive petition from the First Circuit, the petition is dismissed for lack of
jurisdiction without prejudice to the petitioner’s rights to obtain permission from
the First Circuit to file a “second or successive” petition. Gautier v. Wall, 620 F.3d
58, 60 (1st Cir. 2010)(district court lacked jurisdiction to consider second or
successive petition without First Circuit’s authorization; vacating district court’s
dismissal of second or successive petition and entering judgment of dismissal for
lack of jurisdiction).
Accordingly, it is hereby ORDERED that the Motion for Adjudication (ECF
No. 30) is GRANTED. The Recommended Decision of the Magistrate Judge (ECF
No. 4) is hereby ADOPTED. The Petition is DISMISSED for lack of jurisdiction.
Because the Court is without jurisdiction, the petitioner’s motions for assistance in
procuring transcripts and for court appointed counsel (ECF No. 3), to amend the
petition (ECR No. 13), for an evidentiary hearing (ECF No. 8 & 31), for
reconsideration (ECF No. 27 & 28), and for certificate of appealability (ECF No. 33)
are all rendered MOOT.
SO ORDERED.
/s/ Nancy Torresen
UNITED STATES DISTRICT JUDGE
Dated this 7th day of November, 2012

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