Ericson v. Commonwealth

Filing 15

Judge Richard G. Stearns: ORDER entered adopting Report and Recommendations re 13 Report and Recommendations. The petition is DISMISSED with prejudice. (mkz)

Case 1:20-cv-11688-RGS Document 15 Filed 11/18/20 Page 1 of 2

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 20-11688-RGS
KEITH M. ERICSON,
Petitioner
v.
COMMONWEALTH OF MASSACHUSETTS,
Respondent
ORDER ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
November 18, 2020
STEARNS, D.J.
Magistrate Judge Kelley correctly identifies this Petition as “a second
or successive § 2254 . . . petition . . . filed . . . without the requisite
authorization by the court of appeals . . . .” Dkt #13 at 1. Consequently, I will
adopt her recommendation that the Petition be dismissed pursuant to 28
U.S.C. §2244(3) (A). 1 I further agree with the Magistrate Judge that it is not

Petitioner Ericson brought a § 2254 petition (First Petition), Ericson
v. Mitchell, 15-13677-FDS, (Ericson I), in this court in 2015. The First
Petition was dismissed on an unopposed motion for failure to prosecute the
action. Ericson 1, Motion to Dismiss for Lack of Prosecution (Dkt #32), April
14, 2017 Electronic Order (Dkt #39), and April 18, 2017 Order of Dismissal
(Dkt #40). A dismissed for failure to prosecute operates as an adjudication
on the merits pursuant to Fed. R. Civ. P. 41(b).
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Case 1:20-cv-11688-RGS Document 15 Filed 11/18/20 Page 2 of 2

in the interest of justice to transfer the Petition pursuant to 28 U.S.C. § 1631.2
For the foregoing reasons, 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 enter the dismissal
and close the case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

Ericson has not filed an Objection to the Magistrate Judge’s Report
and Recommendation within the time allotted.
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