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Falak v. Shepard

United States District Court, N.D. Georgia, Atlanta Division

June 11, 2015

ABDULLAH FALAK, Petitioner,
v.
STAN SHEPARD, Warden, Respondent.

FINAL REPORT AND RECOMMENDATION

E. CLAYTON SCOFIELD, III, Magistrate Judge.

In 2010, this Court dismissed Abdullah Falak's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the United States Court of Appeals for the Eleventh Circuit denied Mr. Falak a Certificate of Appealability. See Falak v. Hart, No. 1:09-CV-2322-TWT (N.D.Ga. filed Aug. 4, 2009) [Doc. Nos. 11 & 26 therein]. Mr. Falak has now filed a second § 2254 petition. See [Doc. No. 1].

Because nothing in Mr. Falak's latest petition indicates that he sought and received permission from the United States Court of Appeals for the Eleventh Circuit to file a second or successive petition, see 28 U.S.C. § 2244(b)(3)(A), the undersigned RECOMMENDS that this case be DISMISSED WITHOUT PREJUDICE.

Because reasonable jurists would not find dismissal of Mr. Falak's petition for failure to obtain permission to file it from the Eleventh Circuit to be reasonably debatable, the undersigned further RECOMMENDS that a Certificate of Appealability be DENIED. See Slack v. McDaniel, 529 U.S. 473, 478 (2000).

Finally, because Mr. Falak's request for permission to proceed in forma pauperis ("IFP") indicates that the average monthly balance in his inmate account has substantially exceeded the $5 filing fee for this case, see [Doc. No. 2 at 3], the undersigned RECOMMENDS that this Court (A) DENY Mr. Falak permission to proceed IFP and (B) ORDER his custodian to remit the $5 filing fee on his behalf.

The Clerk is DIRECTED to terminate the referral of this case to the undersigned.

SO RECOMMENDED AND DIRECTED.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Attached is the report and recommendation of the United States Magistrate Judge in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Civil Local Rule 72. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the report and recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings and conclusions of law will be limited to a plain error review. See 11th Cir. R. 3-1.

The Clerk is DIRECTED to submit the report and recommendation with objections, if any, to the District Court after expiration of the above time period.

SO ORDERED.


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