MCCLUSKIE v. MAINE, STATE OF et al, No. 1:2009cv00400 - Document 15 (D. Me. 2009)

Court Description: REPORT AND RECOMMENDED DECISION re 14 MOTION to Dismiss filed by DANNY MCCLUSKIE. Objections to R&R due by 11/16/2009. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE DANNY MCCLUSKIE, Petitioner v. MAINE, STATE OF, Respondent ) ) ) ) ) Civil No. 9-400-B-W ) ) ) ) RECOMMENDED DECISION Danny McCluskie filed a 28 U.S.C. § 2254 petition on August 28, 2009. On September 14, 2009, the State of Maine filed an answer, pointing out, among other things, that McCluskie has already filed a 28 U.S.C. § 2254 petition that was denied in August 1993. Accordingly, before proceeding with this 28 U.S.C. § 2254 petition McCluskie must seek the permission of the First Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A). McCluskie has filed a motion seeking this court s leave to withdraw his pending 28 U.S.C. § 2254 motion. The State has informed the clerk s office that it takes no position on this request. I read the certification requirement of § 2244(b)(3)(A) to be a mandatory prerequisite to filing a second or successive § 2254 petition. McCluskie has a reason and a right to seek the voluntary dismissal of this petition. Accordingly, I recommend that the Court grant McCluskie leave to withdraw the petition and dismiss it without prejudice to McCluskie s right to resurrect his current challenge should he obtain the necessary order authorizing his return § 2254 visit to this court.1 1 In so doing, I in no way touch on the merits of McCluskie s current habeas challenge but I do note that, with regards to any potential 28 U.S.C. § 2244(b)(2) inquiry, that this court has denied § 2254 relief on substantially similar claims brought by other § 2254 petitioners. See, e.g., Cummings v. Maine, 09- 302-B-W, 2009 WL 2242368 (D. Me. July 26, 2009) (recommended decision), adopted, 2009 WL 2476515 (D. Me. Aug. 12, 2009). 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, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) 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. /s/ Margaret J. Kravchuk U.S. Magistrate Judge October 28, 2009.

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