Opinion
1:11-cv-00281-DBH
08-19-2011
ANDREW P. FLOOD, Petitioner v. SCOTT JONES, Respondent
RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION
This is Andrew Flood's fourth case in this court that challenges the revocation of his probation in January 2010.
See Flood v. Barnhart, No. 1:11-cv-32-DBH; Flood v. Maine Dep't of Corrections, No. 1:11-cv-205-DBH; Flood v. Maine Department of Corrections, No. 1:11-cv-270-DBH. On August 8, 2011, Flood also filed a fifth case, Flood v. Hunter, No. 1:11-cv-303-DBH, a civil action against Maine Superior Court Justice Allen Hunter, arising out of the same nucleus of facts.
This court has recently denied Flood's 28 U.S.C. § 2254 habeas relief pertaining to the probation revocation, see Flood v. Barnhart, No. 1:11-cv-32-DBH, 2011 WL 2634103, 1 (D. Me. July 5, 2011) (affirming recommended decision). I also entered an order and recommended decision on Flood's pleadings in a 42 U.S.C. § 1983 suit granting Flood's motion to proceed without prepayment of fees, denying his motion for appointment of counsel, and recommending that the case be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Flood v. Me. Dept. of Corrections, No. 1:11-cv-205-DBH, 2011 WL 2160678, 2 (D. Me. May 31, 2011) (recommended decision). Before that recommendation could be addressed, Flood filed a motion to voluntarily dismiss that action, and that motion was granted by Judge Hornby.
Before me now is Flood's newest 28 U.S.C. § 2254 petition. Flood admits that he has "touched on these grounds in all of [his] filings" and that his earlier petition in 1:11-cv-32-DBH case was an effort to challenge the same conviction. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Docket No. 1) at 12.
Subsection (b)(3)(A) of 28 U.S.C. § 2244 provides: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244 (b)(3)(A). Flood has not procured this order. Moreover, he has appealed the denial of his habeas petition in 1:11-cr-32-DBH. See Flood v. Barnhart, No. 1:11-cr-32-DBH at Docket Nos. 34-37.
Consequently, I recommend that the court dismiss this petition without prejudice to Flood's rights to return to this forum, after securing permission to do so from the First Circuit Court of Appeals.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum and request for oral argument before the district judge, if any is sought, within fourteen (14) days after being served with a copy thereof. A responsive memorandum and any request for oral argument before the district judge shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.
John H. Rich III
United States Magistrate Judge