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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

VINCENT F. RIVERA, 

Petitioner,

vs. Case No. 4:10cv97-MP/WCS

WALTER McNEIL, 

Respondent.

_____________________________/

REPORT AND RECOMMENDATION TO DISMISS § 2254 PETITION

Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

and motion to proceed in forma pauperis. Docs. 1 and 2. 

Petitioner is currently incarcerated at Apalachee Correctional Institution, and

challenges the judgment of the Eighth Judicial Circuit, in Bradford County, Florida. Doc.

1, p. 1. According to the website for the Florida Department of Corrections, Petitioner is

serving a life sentence and a twenty year term imposed in 1991 by the Thirteenth

Judicial Circuit, in Hillsborough County, and a 53 year sentence imposed in 1999 by the

Circuit Court in Bradford County. 

Both Bradford and Hillsborough Counties are located in the Middle District of

Florida. A challenge to either judgment would therefore be appropriate in this district
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1

 Petitioner continued in this court by filing motions and notices of appeal after

the case had been transferred; see docs. 7, 8, 10, 11, 16, 19, and 27 in that file. 

2

 Dockets and electronically filed documents of other district courts are available

on PACER (Public Access to Court Electronic Records). This court's files are available

in ECF (electronic case filing). 

Case No. 4:10cv97-MP/WCS

(Panama City Division) and the Middle District of Florida, as the districts of confinement

and conviction, respectively. 28 U.S.C. § 2241(d). A challenge to a state conviction or

sentence (as opposed to, e.g., a challenge to the loss of sentence credit in a disciplinary

proceeding) is generally transferred to the district of conviction as the most convenient

and appropriate venue under § 2241(d). See also, Parker v. Singletary, 974 F.2d 1562,

1582 and nn. 114 and 118 (11th Cir. 1992) (finding transfer "in furtherance of justice"

under § 2241(d), citations omitted); Eagle v. Linahan, 279 F.3d 926, 933, n. 9 (11th Cir.

2001) (noting practice of the district courts in Georgia, to transfer petitions to the district

of conviction under § 2241(d)). 

Indeed, Petitioner Rivera previously filed in this district a § 2254 petition

challenging the same conviction out of Bradford County, and it was transferred to the

Middle District of Florida. See 4:01cv266-SPM, docs. 2, 3, and 6 (report and

recommendation, as adopted by the court, and acknowledgment of receipt indicating

the case was assigned number 3:01cv1040-J-20TEM in the Middle District).1 

The Middle District ultimately dismissed the transferred § 2254 petition without

prejudice for Petitioner's failure to exhaust state court remedies, noting that dismissal

without prejudice did not excuse Petitioner from the one year limitations period of 28

U.S.C. § 2244(d). Docs. 7 and 8 in 3:01cv1040-J-20TEM, entered on the docket on

September 18, 2001.2

 Petitioner filed a number of motions and notices of appeal
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3 See also Rivera v. State, 728 So.2d 1165, 1166 (Fla. 1998) ("Rivera has

flooded the courts with frivolous petitions, appeals, and other filings requesting relief to

which he was not entitled.").

4

 That petition was dismissed without prejudice as Petitioner indicated he had a

direct appeal and a petition for writ of mandamus pending in state court. Doc. 3 in that

case. As in his other cases, Petitioner filed a number of motions and notices of appeal

following dismissal. See docs. 5, 7, 10, 12, 14, 17, 19, 22, 25, 26, 28, 31, 32 in that

case. By order entered on January 28, 2005, the court took judicial notice of the

frivolous cases and appeals, and directed the clerk to terminate all motions presently

pending or filed in the future in that case. 

Case No. 4:10cv97-MP/WCS

following dismissal. See docs. 9, 13, 14, 16, 17, 19, 21, 23, 24, 29 in that file. Finally,

the Middle District entered an order taking "judicial notice of the multitude of frivolous

cases and appeals that Petitioner Rivera has filed in this court," and declared it would

not entertain any more post judgment motions in that case. Doc. 28 in that file (entered

on December 4, 2003, directing the clerk to terminate all motions presently pending or

filed in the future).3 

Another § 2254 petition challenging the judgment in Bradford County was

dismissed without prejudice by the Middle District as a sanction, for Petitioner's failure to

disclose a previous challenge to the same judgment and conviction. Doc. 3 in Middle

District case number 3:00cv149-J-21A (referencing case number 3:00cv63-J-21A4). It

was noted that dismissal without prejudice did not excuse Petitioner from the one year

limitations period. Petitioner filed a number of motions and notices of appeal following

dismissal. See docs. 5, 7, 8, 12, 14, 16, 19, 22, 24, and 27 in that case. By order

entered on January 5, 2004, the court took "judicial notice of the multitude of frivolous

cases and appeals" filed by Petitioner, and directed the clerk to terminate all motions

presently pending or filed in the future in that case. Doc. 28 in that file. 
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5

 The court has reviewed many although not all of the dockets in those cases. It

is not clear that Petitioner has ever had § 2254 relief denied on the merits or with

prejudice, so it is unknown whether he would need authorization from the Eleventh

Circuit to file a second or successive § 2254 petition. A § 2254 petition was denied in

1998 by the Middle District, Tampa Division (presumably as to the Hillsborough County

conviction), but given the age of the case the relevant documents were not scanned into

ECF. The docket reflects that the court entered an order to show cause for Petitioner to

overcome the procedural bar, and the petition was subsequently dismissed without

indication that it was with or without prejudice. Docket entries 6-9 in case number

8:97cv2897-T-17A. 

6 See, e.g., Southern District case number 1:97cv3612-CIV-GOLD, transferred to

the Middle District and assigned case number 8:97cv2897-T-17A. 

Case No. 4:10cv97-MP/WCS

This is a small sample of Petitioner Rivera's § 2254 history. A search of his

name in PACER, limited to just § 2254 petitions filed in Florida, produces a list of 58

cases.5 The petitions were mostly in the Middle District, but some were filed here and in

the Southern District. Although a few may, like the case noted above, be doubly

represented as a second case number was assigned upon transfer,6 Petitioner has

clearly filed many petitions. 

On the § 2254 form filed here, there is space on the form asking whether "you

previously filed a § 2254 petition, or other pleading regarding the validity of your state

court confinement, in any federal court," and if so to "provide the name of the court,

case number, and result (including the result of any appeal)." Doc. 1, p. 3. Petitioner

indicated "yes," and provided this information: "Middle District of Florida, US District

Court." Id. He did not indicate multiple filings, or case numbers, or results, and did not

indicate cases filed here and in the Southern District. 

As noted above, at least one of Petitioner's cases in the Middle District was

dismissed for failing to set forth his prior petitions on the form. The court said that 
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Case No. 4:10cv97-MP/WCS

Petitioner must be forced to conform to acceptable standards in

approaching this Court. The Court will not tolerate incomplete or false

responses and / or statements in any pleading or motion filed for

consideration by the Court. If the Court cannot rely on the statements and

/ or responses made, it threatens the quality of justice. Here, Petitioner

has incompletely and falsely responded to [the question regarding prior

petitions]. 

Doc. 3 in 3:00cv149-J-21A. 

Petitioner has again failed to accurately complete the § 2254 form. Given his

prior history, it is clear that Petitioner is aware of the proper venue for his petition, of the

need to include complete and accurate information on the petition form, of the time limit

for filing, and the exhaustion requirements. It may be that he is filing in this court

because of his history of frivolous filings in the Middle District. Transfer of the § 2254

petition to that district is not appropriate or necessary. 

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that "[t]he

district court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant," and if a certificate is issued "the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." The court

may direct parties to file argument on whether a certificate should issue. Id. Denial of a

certificate of appealability is not appealable, but a certificate may be sought from the

court of appeals pursuant to Fed.R.App.P. 22. A motion to reconsider denial of a

certificate does not extend the time to appeal. A timely notice of appeal must be filed

even if the court issues a certificate of appealability. § 2255 11(b).

There is no substantial showing of the denial of a constitutional right, and a

certificate of appealability should not issue. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (explaining how to
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7

 Where a party was permitted to proceed in forma pauperis here he may so

proceed on appeal unless, before or after an appeal is filed, this court certifies that an

appeal is not taken in good faith or the party is not otherwise entitled to proceed in

forma pauperis. Fed.R.App.P. 24(a)(3). 

Case No. 4:10cv97-MP/WCS

satisfy this showing) (citation omitted). If Petitioner wishes to submit argument as to

why a certificate should issue he shall do so by filing objections to this recommendation

within the time set forth below. 

Petitioner's motion to proceed in forma pauperis in this court is granted by

separate order for purposes of dismissal. Leave to proceed in forma pauperis should

be denied for any appeal.7

It is therefore respectfully RECOMMENDED that the § 2254 petition, challenging

the judgment out of Bradford County, Florida, be SUMMARILY DISMISSED, and that a

certificate of appealability be DENIED pursuant to § 2254 Rule 11(a). It is further

RECOMMENDED that the court CERTIFY that any appeal is not taken in good faith and

Petitioner is otherwise not entitled to proceed in forma pauperis on appeal. 

IN CHAMBERS at Tallahassee, Florida, on March 18, 2010.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.