Rankins v. O'Brien et al

Filing 35

Judge Richard G. Stearns: ORDER entered granting 9 Motion to Dismiss; adopting Report and Recommendations re 33 Report and Recommendations. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-12890-RGS
ALEX RANKINS,
Petitioner
v.
KELLY RYAN, Superintendent,
Respondent
ORDER ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
August 24, 2016
STEARNS, D.J.
I agree with Magistrate Judge Dein’s determination that petitioner
Rankins has filed a second or successive petition filed without the required
authorization of the Court of Appeals.

See 28 U.S.C. § 2244(b)(3)(A).

Without such authorization, this court lacks jurisdiction to entertain the
petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). I also agree with the
Magistrate Judge’s conclusion that the petition is untimely under the oneyear limitations period mandated by 28 U.S.C. § 2244(d)(1), and that no
exception applies. Finally, for the reason stated by the Magistrate Judge,
namely futility, the petition will be dismissed rather than transferred to the

Court of Appeals.1
Consequently, the Recommendation is ADOPTED and the petition is
DISMISSED with prejudice. Any request for the issuance of a Certificate of
Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing no
meritorious or substantial basis supporting an appeal.

The Clerk is

instructed to close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

Petitioner’s objections to the Report and Recommendation make no
arguments that were not considered by the Magistrate Judge, as reflected in
her Report.
1