Opinion
CASE NO.: 4:10-CV-310-SPM/GRJ.
September 12, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court for consideration of the Magistrate Judge's Report and Recommendation (doc. 43). Petitioner has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner filed objections (doc. 45). Pursuant to Title 28, United States Code, Section 636(b)(1), I have conducted a de novo review of the sections of the report to which objections have been made. I find that the Report and Recommendation is correct and should be adopted.
Respondent filed a motion to dismiss the petition for a writ of habeas corpus stating that this Court lacks jurisdiction over this matter. The Report and Recommendation states, and this Court agrees, that because Petitioner was not in custody pursuant to the sentence for the misdemeanor which led to his petition, this Court does not have jurisdiction. In Petitioner's objections he argues that when the actual innocence exception is invoked, the "in custody" requirement becomes a moot issue. To show actual innocence, Petitioner must, "with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence," demonstrate that "it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Petitioner has failed to make the requisite showing so no additional inquiry is necessary. Therefore, this Court finds that it lacks jurisdiction in this matter.
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. The Magistrate Judge's Report and Recommendation (doc. 43) is adopted and incorporated by reference into this order.
2. The Motion to Dismiss Petition (doc. 31) is granted and this case is dismissed with prejudice.
3. A certificate of appealability is denied.
DONE AND ORDERED