Martin ADC v.Kelley

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISIONJul 10, 2019
No. 5:19-cv-202-DPM (E.D. Ark. Jul. 10, 2019)

No. 5:19-cv-202-DPM

07-10-2019

LAWRENCE EDWARD MARTIN ADC #106491 PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


ORDER

On de novo review, the Court adopts the recommendation, No 4, and overrules Martin's objections, No 6. FED. R. CIV. P. 72(b)(3). Regardless of the label he gives it, Martin's petition is, in essence, a habeas petition. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). And "failing to subject it to the same requirements would be 'inconsistent with' the statute." Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005) (quoting 28 U.S.C. § 2254 and Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts). He therefore needs permission from the Court of Appeals to proceed. 28 U.S.C. § 2244(b). His motion to amend, No 5, is denied; and his petition will be dismissed without prejudice. No certificate of appealability will issue. 28 U.S.C. § 2253(c)(1)-(2).

So Ordered.

/s/_________


D.P. Marshall Jr.


United States District Judge

10 July 2019