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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

VINCENT F RIVERA,

Petitioner,

v. CASE NO. 4:10-cv-00097-MP-WCS

WALTER MCNEIL,

Respondent.

_____________________________/

O R D E R

This matter is before the Court on Report and Recommendation, Doc. 6. The Magistrate,

after a very extensive review of this case and previous and related cases filed by the same

petitioner, has recommended that the current petition be summarily dismissed, and a certificate

of appealability denied. The Magistrate also recommends the Court certify that any appeal is not

taken in good faith. Petitioner objects generally, claiming the “Report and Recommendation is a

total farce and a mockery of justice. It flies in the face of the spirit of the law itself. Because it

compliments illegal state action with judicial propaganda. So that the net result is a flagrant

denial of the First Amendment right of access to the courts. And for obvious reasons.” Doc. 7. 

This Court reviews such objected-to Recommendation de novo. 

Because Mr. Rivera dedicates most of his objection to his complaints about the United

States Courts and their alleged complicity with the State of Florida and the Prison-Industrial
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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.

Case No: 4:10-cv-00097-MP-WCS

Complex, this Court must look to the record to determine the merit of Mr. Rivera’s petition. The

record, both of Mr. Rivera’s underlying conviction and his previous efforts to overturn it, is quite

extensive. Because Mr. Rivera’s objection to the Report and Recommendation does not allege

any new pertinent facts or arguments, the text of the objection need not be discussed at length to

reach the correct conclusion. 

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. 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. Petitioner

filed a number of motions and notices of appeal 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
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2

 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.").

3

 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: 4:10-cv-00097-MP-WCS

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).2

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.3

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

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
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Case No: 4:10-cv-00097-MP-WCS

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. 

Here, as there is no substantial showing of the denial of a constitutional right, 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 satisfy this showing) (citation

omitted). Additionally, under Rule 24(a)(3) of the Federal Rules of Appellate Procedure, a party

who was permitted to proceed in forma pauperis at the district-court level may proceed in forma

pauperis on appeal without further authorization, unless the Court certifies that the appeal is not

taken in good faith. An appeal is taken in good faith if it presents “legal points arguable on their

merits (and therefore not frivolous).” Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.

Ed. 2d 493 (1967); see also Busch v. County of Volusia, 189 F.R.D. 687, 692-93 (M.D. Fla.

1999). None of Mr. Rivera’s points are arguable on their legal merits. 

Also, this Court joins the several others who have already taken judicial notice of Mr.

Rivera’s numerous frivolous filings. Accordingly, it is
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Case No: 4:10-cv-00097-MP-WCS

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge, Doc. 6, is ADOPTED

and incorporated herein. 

2. This petition is SUMMARILY DISMISSED, and a certificate of appealability is

DENIED pursuant to § 2254 Rule 11(a). 

3. The Court certifies that any appeal taken from this ruling is in bad faith, such that

Mr. Rivera may not proceed in forma pauperis on appeal. 

4. The Clerk is directed to require the full filing fee for all future filings from Mr.

Rivera unless danger of imminent bodily harm is alleged.

DONE AND ORDERED this 2ndday of April, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge