Kerr v. State of Florida

Filing 19

ORDER ADOPTING 16 REPORT & RECOMMENDATION OF MAGISTRATE JUDGE, DISMISSING PETITION WITHOUT PREJUDICE, AND DENYING 17 PETITIONER'S MOTION TO STAY. Signed by Judge Joan A. Lenard on 4/14/2009. (lc1)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 08-23251-CIV-LENARD/WHITE O R R E T T S. KERR, P e t i t io n e r , vs. S T A T E OF FLORIDA, Respondent. ________________________________/ O R D E R ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE J U D G E (D.E. 16), DISMISSING PETITION WITHOUT PREJUDICE, AND D E N Y I N G PETITIONER'S MOTION TO STAY (D.E. 17) T H I S CAUSE is before the Court on the Report and Recommendation of the M a g istra te Judge ("Report," D.E. 16), issued on February 10, 2009, recommending that this P e titio n be dismissed without prejudice, except as to any application of the federal statute of lim ita tio n s or other federal procedural bar, for lack of exhaustion. Therein, Petitioner was p ro v id e d ten (10) days to file objections to the Report. To date, Petitioner has not filed any o b je c tio n s to the Report. Failure to timely file objections shall bar parties from attacking on ap p ea l the factual findings contained in the report. See Resolution Trust Corp. v. Hallmark B u ild e rs, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993). However, realizing his failure to e x h a u st his state court remedies, Petitioner filed on February 18, 2009, a Motion to Stay (D .E . 17) the habeas petition pending exhaustion at the state level. The Court agrees with th e Magistrate Judge's finding that "[s]ince the instant proceeding has been timely filed and th e petitioner has sufficient time to return to this Court within the limitations period after his

s ta te court remedies have been fully and properly exhausted on any and all claims he might w a n t to raise challenging his convictions and sentences, a dismissal rather than a stay of the in s ta n t proceeding is the appropriate course of action." (See Report at 9-10; Rhines v. W e b e r, 544 U.S. 269 (2005).) Therefore, after an independent review of the Report and re c o rd , it is hereby: O R D E R E D AND ADJUDGED that: 1. 2. T h e Report of the Magistrate Judge (D.E. 16) is ADOPTED. P e titio n e r's Petition for Writ of Habeas Corpus (D.E. 1), filed on or about N o v e m b e r 24, 2008, is DISMISSED WITHOUT PREJUDICE, except as to th e any application of the federal statute of limitations or other federal p ro c e d u ra l bar that may apply. 3. P e titio n e r's Motion to Stay (D.E. 17) these proceedings pending exhaustion of s ta te court remedies is DENIED. 4. T h i s case is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida this 14th day of April, 2009.

______________ _ _ _ _ _ _ _ _ _ _ _ __________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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