MICHAEL v. DIXON

• Court: District Court, N.D. Florida
• Decided: October 4, 2023
• Docket: 4:22-cv-00414
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

LINDA MICHAEL,

Petitioner,

v. Case No.: 4:22cv414-MW/MAF

RICKY D. DIXON, Secretary, Department of Corrections,

Respondent. ___________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge’s Report and Recommendation, ECF No. 30, and has also reviewed de novo Petitioner’s objections, ECF No. 31. Petitioner raises several arguments, but none help her claim. Nothing in Petitioner’s objections rebuts the Magistrate Judge’s finding that Petitioner has filed a second or successive 28 U.S.C. § 2254 petition without acquiring an order from the Eleventh Circuit permitting this Court to consider such a petition, which deprives this Court of jurisdiction. See 28 U.S.C. § 2244(b)(3)(A). Further, nothing in Petitioner’s objections rebuts the Magistrate Judge’s finding that, to the extent Petitioner challenges Florida’s clemency process, such a claim is not cognizable under section 2254. See Valle v. Sec’y, Fla. Dep’t of Corr., 654 F.3d 1266, 1267–68 (11th Cir. 2011) (noting that a section 1983 claim—not a section 2254 petition—is the proper vehicle to challenge the process by which clemency decisions are made).

For these same reasons, Petitioner has failed to make a substantial showing of a violation of a constitutional right under 28 U.S.C. 2253(c)(2) and her motion for a certificate of appealability, ECF No. 31, is due to be denied. Accordingly,

IT IS ORDERED: 1. The report and recommendation, ECF No. 30, is accepted and adopted, over the Petitioner’s objections, as this Court’s opinion. 2. The Clerk shall enter judgment stating, “The petition under 28 U.S.C. §

2254, ECF No. 1, is DISMISSED without prejudice under 28 U.S.C. § 2244(b)(3)(A) as an unauthorized second or successive habeas petition.” 3. Petitioner’s motion for a certificate of appealability, ECF No. 31, is

DENIED. 4. Respondent’s motion to dismiss, ECF No. 23, is DENIED as moot. 5. The Clerk shall close the file. SO ORDERED on October 4, 2023.

s/Mark E. Walker ____ Chief United States District Judge