REILLY v. CAMPBELL
Filing
46
ORDER adopting 43 Report and Recommendations; GRANTING 31 Motion to Dismiss. Signed by SENIOR JUDGE STEPHAN P MICKLE on 9/12/2011. This case is dismissed with prejudice. A certificate of appealability is denied. (kdm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SEAN REILLY
Petitioner,
vs.
CASE NO.: 4:10-CV-310-SPM/GRJ
LARRY CAMPBELL,
Respondent.
___________________________/
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 this 12th day of September, 2011.
S/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge
2
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