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Young v. Baker

United States District Court, M.D. Georgia, Albany Division
Mar 10, 2006
1:04-CV-181 (WLS) (M.D. Ga. Mar. 10, 2006)

Opinion

1:04-CV-181 (WLS), 28 U.S.C. § 2254.

March 10, 2006


ORDER


Before the Court is a Report and Recommendation from United States Magistrate Judge Richard L. Hodge (Doc. 16), filed February 9, 2006. It is recommended that Respondent's motion to dismiss Petitioner's 28 U.S.C. § 2254 petition be denied without prejudice. Respondent has not filed an objection to the Report and Recommendation. Petitioner has filed a timely objection to the Report and Recommendation. (Doc. 17).

The Magistrate Judge correctly concluded, despite Respondent's argument to the contrary, that this Court has jurisdiction over the petition and that the petition is not subject to dismissal under the doctrine of laches. The Magistrate Judge observed that the petition may be subject to dismissal under the AEDPA, 28 U.S.C. § 2244(d). Whether that is in fact the case, the Magistrate Judge did not make a determination and allowed the Respondent to renew his motion to dismiss based such a theory.

The Petitioner objected to the Report and Recommendation in that Respondent's motion should be denied with prejudice. Petitioner cites to Rule 5 of the Rules Governing Section 2254 Cases for the proposition that Respondent should not be allowed to raise an alternate argument for dismissal. A close reading of Rule 5 does not support such a conclusion. Further, the Eleventh Circuit case cited by Petitioner discusses the waiver of defenses by a Respondent on appeal that were not raised below, not about raising an alternate argument at the trial court level. Howard v. U.S., 374 F.3d 1068 (11th Cir. 2004). Therefore, Petitioner's objection to the recommendation is without merit. Accordingly, the Court rejects and overrules Petitioner's objection. (Doc. 17).

Upon full consideration of the record, the Court finds that said Recommendation should be and hereby is, ACCEPTED, ADOPTED and made the order of this Court for reason of the findings and reasons set out therein, together with the findings made, reasons stated and conclusions reached herein. Accordingly, Respondent's motion to dismiss Petitioner's petition (Tab 10) is DENIED without prejudice.

SO ORDERED.


Summaries of

Young v. Baker

United States District Court, M.D. Georgia, Albany Division
Mar 10, 2006
1:04-CV-181 (WLS) (M.D. Ga. Mar. 10, 2006)
Case details for

Young v. Baker

Case Details

Full title:JERMAINE YOUNG, Petitioner, v. THURBERT BAKER, Attorney General of…

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

Date published: Mar 10, 2006

Citations

1:04-CV-181 (WLS) (M.D. Ga. Mar. 10, 2006)