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MYERS v. U.S., CR495-123 (2012)

Court: District Court, S.D. Georgia Number: infdco20120626d12 Visitors: 7
Filed: Jun. 25, 2012
Latest Update: Jun. 25, 2012
Summary: ORDER WILLIAM T. MOORE, Jr., District Judge. Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 3), to which objections have been filed (Doc. 5). After a careful de novo review of the record, the Court concludes that Petitioner's objections are without merit. Accordingly, the report and recommendation is ADOPTED as the Court's opinion in this case, and Petitioner's 28 U.S.C. 2255 Petition is DISMISSED. The Clerk of Court is DIRECTED to close this case. In his
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ORDER

WILLIAM T. MOORE, Jr., District Judge.

Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 3), to which objections have been filed (Doc. 5). After a careful de novo review of the record, the Court concludes that Petitioner's objections are without merit. Accordingly, the report and recommendation is ADOPTED as the Court's opinion in this case, and Petitioner's 28 U.S.C. § 2255 Petition is DISMISSED. The Clerk of Court is DIRECTED to close this case.

In his objections, Petitioner argues that this petition is not successive because it is based on a recent decision by the Supreme Court of the United States, decided after he filed his previous petition. (Doc. 5 at 1-2.) Petitioner's reasoning, however, is incorrect. A later petition is not successive simply because it is based on a rule of law decided after the filing of an initial habeas petition. Rather, a petitioner may advance a purported change in the law as grounds for permission to file a second or successive habeas petition. Such permission cannot be obtained from this Court, but only from the Eleventh Circuit Court of Appeals by filing an "Application for Leave to File a Second or Successive Habeas Corpus Petition," using the form provided by the Eleventh Circuit Clerk of Court. Absent certification from the Eleventh Circuit Court of Appeals pursuant to Eleventh Circuit Rule 22-3 (a), this Court is without jurisdiction to entertain the merits of a successive petition.

SO ORDERED.

Source:  Leagle

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