Opinion
Case No. 1:09-cv-42 (WLS).
July 12, 2011
ORDER
Before the Court is a Report and Recommendation from United States Magistrate Judge Thomas Q. Langstaff, filed June 21, 2011. (Doc. 16). It is recommended that Petitioner's 28 U.S.C. § 2254 federal habeas corpus petition, which challenges Petitioner's 2008 Decatur County conviction for possession of cocaine ( see Doc. 1), be dismissed without prejudice for failure to exhaust state court remedies regarding the grounds for relief he asserts in his federal habeas petition. (Doc. 16 at 2).
The Report and Recommendation provided the Parties with fourteen (14) days from the date of its service to file written objections to the recommendations therein. ( Id.). The period for filing objections expired on Friday, July 8, 2011; no objections have been filed to date. ( See Docket).
The Parties were given an additional three days because service was made by mail. See Fed.R.Civ.P. 6(d) (adding three days to specified period within which a party may act if service is made under Rule 5(b)(2)(C) by mailing process to a party's last known address).
Upon full review and consideration of the record, the Court finds that said Report and Recommendation (Doc. 16) should be, and hereby is, ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein. Accordingly, Plaintiff's federal habeas corpus petition and amended petition, filed pursuant to 28 U.S.C. § 2254 ( see Docs. 1, 5), are DISMISSED WITHOUT PREJUDICE. Petitioner may re-file his federal habeas petition in this Court once he has exhausted the remedies available to him in the state court system.
The Court further DENIES Petitioner a certificate of appealability. Only after Petitioner has fully exhausted available state court remedies and has followed the correct procedure to properly assert his claims before this Court may the Court evaluate, if necessary, whether Petitioner has made a substantial showing of the denial of a constitutional right, sufficient to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.