Opinion
CASE NO. 4:07-cv-00235-MP-WCS.
August 7, 2007
ORDER
This matter is before the Court on Doc. 7, Report and Recommendation of the Magistrate Judge, recommending that Petitioner Nealy's Petition for Writ of Habeas Corpus, Doc. 1, be dismissed. The Magistrate Judge filed the Report and Recommendation on Friday, July 6, 2007. The parties have been furnished a copy of the Report and Recommendation 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 made. In this instance, however, no objections have been made.
Petitioner filed his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2554. Because Petitioner is no longer in custody of the State, and because the one year time limit for filing a § 2254 petition under 28 U.S.C. § 2244(d)(1) has expired, the Magistrate recommends that the petition be dismissed. Federal district courts have jurisdiction to entertain habeas petitions only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Section 2254(a) requires that an applicant for federal habeas corpus relief be "in custody" at the time the application is filed. A petitioner is not "in custody" to challenge a conviction when the sentence imposed for that conviction has completely expired. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989).
The Court agrees with the Magistrate that Petitioner is not entitled to relief, and that the petition should be summarily dismissed. Therefore, having considered the Report and Recommendation, and the lack of objections thereto, I have determined that the Report and Recommendation should be ADOPTED.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation, Doc. 7, is adopted and incorporated by reference in this order.
2. The petition for writ of habeas corpus, Doc. 1, is DENIED, and this case is SUMMARILY DISMISSED WITH PREJUDICE.DONE AND ORDERED.