FLEMING v. BOUFFARD et al

Filing 4

ORDER adopting 2 Report and Recommended Decision for 1 Petition for Writ of Habeas Corpus filed by DAVID GORDON FLEMING; dismissing 1 Petition for Writ of Habeas Corpus. No Certificate of Appealability should issue because there is no substantial issue that could be presented on appeal. See Fed.R.App.P.22 and Rule 11 of the Rules Governing Proceedings Under 28 U.S.C. Section 2254 or Section 2255. See also First Circuit Local Rule 22.0. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID GORDON FLEMING,

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Petitioner,
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v.
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WARDEN, MAINE STATE PRISON, )
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Respondent.
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1:14-cv-00327-JAW

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On August 15, 2014, David Gordon Fleming filed with this Court a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in custody in
violation of the United States Constitution. Pet. for Writ of Habeas Corpus (ECF No.
1). On August 21, 2014, the Magistrate Judge issued a recommended decision in
which he recommended that the Court dismiss the petition because it is a second or
successive § 2254 petition and the record does not reflect that the First Circuit Court
of Appeals has authorized this Court to consider the petition. Recommended Decision
on 28 U.S.C. § 2254 Pet. (ECF No. 2). On September 2, 2014, Mr. Fleming objected
to the Recommended Decision. Objection to Report and Recommended Decision (ECF
No. 3). The primary ground for Mr. Fleming’s objection is his assertion that the
Magistrate Judge erred in stating that his earlier § 2254 petition barred his current
§ 2254 petition because, Mr. Fleming contends, the earlier § 2254 petition had been
stayed. Id. at 1.

The Court reviewed Mr. Fleming’s earlier § 2254 petition and the Court
concludes that Mr. Fleming is wrong about the earlier-filed petition. Mr. Fleming
filed a petition for writ of habeas corpus on July 5, 2005 in this Court under docket
number 1:05-cv-00093-GZS. Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus
By a Person in State Custody (ECF No. 2) (Docket No. 1:05-cv-00093-GZS). On
February 1, 2006, the Magistrate Judge recommended that the motion to dismiss the
petition of Jeffrey Merrill, the then Warden of the Maine State Prison, should be
granted. Recommended Decision on Mot. to Dismiss (ECF No. 16). On February 23,
2006, the Court affirmed the Recommended Decision. Order Affirming Recommended
Decision of the Magistrate Judge (ECF No. 17). On the same day, the Order was
reduced to Judgment. J. (ECF No. 18). There was no appeal. The case was never
stayed.
Thus, contrary to Mr. Fleming’s memory, he did file a prior petition for writ of
habeas corpus under 28 U.S.C. § 2254 and the Court never stayed that petition.
Instead, the Court dismissed the petition and issued a final judgment against it. As
such, the pending petition is a second or successive petition and must be dismissed
for the reason set forth in the Magistrate Judge’s Recommended Decision.
The Court OVERRULES David Gordon Fleming’s Objection, AFFIRMS the
Magistrate Judge’s Recommended Decision, and ORDERS his Petition for Writ of
Habeas Corpus DISMISSED (ECF No. 2). It is further ORDERED that no certificate
of appealability should issue in the event the Petitioner files a notice of appeal

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because there is no substantial showing of the denial of a constitutional right within
the meaning of 28 U.S.C. § 2253(c)(2).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATE DISTRICT JUDGE
Dated this 3rd day of September, 2014

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