Opinion
No. 3:99-CV-2784-H.
December 7, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court are the Findings, Conclusions and Recommendation of the United States Magistrate Judge, filed November 16, 2000; and Petitioner's Written Objections thereto, filed December 4, 2000. In his objections, Petitioner moves the court to dismiss this case without prejudice so that he can present his claims of actual innocence and prosecutorial misconduct to the state courts. Although these claims have previously been ruled upon by the state court, Petitioner claims to have recently obtained an affidavit from a key witness which bolsters these claims. Having reviewed his motion, the Court GRANTS Petitioner's request that this case be dismissed without prejudice so that he can present his claims supported by the new affidavit to the state courts.
Accordingly, the Court DECLINES TO ADOPT the Magistrate Judge's recommendation. In declining to adopt the Magistrate Judge's recommendation, the Court intends no comment on the merits of the recommendation, rather reserves ruling on the merits of the recommendation until such time as Petitioner secures a ruling from the state courts on his claims and presents his issues to this Court in a second petition.
For foregoing reasons, the Court ORDERS this case DISMISSED WITHOUT PREJUDICE so that Petitioner can present his claims of actual innocence and prosecutorial misconduct supported by the affidavit of Shannon Landry to the state courts for review.
SO ORDERED.