Calloway v. Upton

Full title: ROBERT TRACY CALLOWAY, SR., Petitioner v. STEPHEN M. UPTON, Respondent

Court: United States District Court, M.D. Georgia, Albany Division

Date published: May 25, 2007

1:04-CV-058 (WLS) (M.D. Ga. May. 25, 2007)

Opinion

1:04-CV-058 (WLS).

May 25, 2007

ORDER

W. SANDS, Chief Judge

Before the Court is a Report and Recommendation from United States Magistrate Judge Richard L. Hodge (Doc. 49) filed April 20, 2007, recommending that Respondent's Motion to Dismiss (Doc. 35) be granted. Petitioner filed a timely objection on May 4, 2007. (Doc. 50).

In the Recommendation, it was found that Petitioner has not exhausted the available state judicial remedies nor has shown that "`there is an absence of available State corrective process, or . . . circumstances exist that render such process ineffective to protect'" Petitioner's rights. (Doc. 49). More specifically it was found that Petitioner "has not raised any of his claims to any state court by means of a direct appeal or state habeas petition," and that in light of a December 2006 hearing on Petitioner's motion for new trial and Petitioner's continued appellate representation, that he has not suffered inordinate delay in the state proceedings. Id. It is therefore recommended that Respondent's Motion to Dismiss (Doc. 35) be granted for Petitioner's failure to exhaust his available state remedies. (Doc. 49).

In his objection, Petitioner recasts and reasserts arguments, in part by asserting the existence of facts which were not before the Magistrate Judge at the time of the Recommendation. (Doc. 50). To the extent said objection reasserts facts and arguments which were previously considered by the Magistrate Judge in the Recommendation, the same is OVERRULED. Likewise, to the extent the objection asserts for the first time the existence of facts which were not before the Magistrate Judge at the time of the Recommendation, the same is OVERRULED. Upon further review, the Court finds that the objection does not demonstrate that the Magistrate Judge in recommending that Respondent's Motion to Dismiss (Doc. 35) be granted made any clear errors in law. To that extent, the objection is without merit and is OVERRULED.

Therefore, upon full review and consideration upon the record, the Court finds that the Report and Recommendation (Doc. 49) as modified herein should be, and hereby is, ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein, together with the findings made and conclusions reached herein. Respondent's Motion to Dismiss (Doc. 35) is therefore GRANTED.

SO ORDERED.