Opinion
CASE NO. 4:07-cv-00197-MP-WCS.
May 2, 2008
ORDER
This matter is before the Court on Doc. 12, Report and Recommendation of the Magistrate Judge, which recommends that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, Doc. 1, be dismissed without prejudice. The Magistrate Judge filed the Report and Recommendation on Thursday, September 6, 2007. The parties have been furnished a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
In his petition, Mr. Barnes challenges his extradition to Texas, which resulted in him being convicted of murder and sentenced to 99 years incarceration. Because Petitioner is currently challenging this conviction on direct appeal, the Magistrate concludes that the instant petition is premature, and recommends that it be dismissed without prejudice. In his objections, Petitioner argues that he has demonstrated a complete miscarriage of justice or fundamental defect in the proceedings that would allow him to challenge to his extradition. The Court disagrees, and finds that Petitioner has not shown prejudice in the proceedings that would allow these claims to be heard in a habeas proceeding. Furthermore, Petitioner has not exhausted all available state remedies, and the Court agrees with the Magistrate that the instant petition is premature. Therefore, having considered the Report and Recommendation, and the objections thereto, I have determined that it should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. Petitioner Barnes' petition for writ of habeas corpus, Doc. 1, is DISMISSED WITHOUT PREJUDICE.
DONE AND ORDERED.