Opinion
CASE NO. 5:09-cv-177-SPM/EMT.
November 19, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court for consideration of the Magistrate Judge's Report and Recommendation (doc. 20). Petitioner has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner filed an objection (doc. 21). Pursuant to Title 28, United States Code, Section 636(b)(1), I have conducted a de novo review of the sections of the report to which objections have been made. I find that the Report and Recommendation is correct and should be adopted.
In this petition, Petitioner challenges his 1996 conviction in Bay County, Florida, for attempted sexual battery, for which he was sentenced to three years imprisonment. However, when Petitioner initiated this action in May of 2009, he was incarcerated in Georgia, apparently pursuant to a different conviction. Petitioner has been afforded the opportunity to show that his sentence in Georgia was enhanced by his conviction in Florida, and has made no such showing. Therefore, Petitioner has failed to satisfy the "in custody" requirement of 28 U.S.C. § 2254, as he was not in custody pursuant to the challenged conviction when he initiated this proceeding.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Magistrate Judge's Report and Recommendation (doc. 20) is adopted and incorporated by reference into this order.
2. The amended petition for writ of habeas corpus (doc. 15) is dismissed for lack of jurisdiction.DONE AND ORDERED.