Perry v. Head

Filing 26

REPORT AND RECOMMENDATION re 21 MOTION to Dismiss Complaint re 11 Petition for Writ of Habeas Corpus, 19 Amended Complaint, 2 Petition for Writ of Habeas Corpus : filed by James Rufus Perry Objections to R&R due by 11/17/2008. Ordered by U.S. Mag. Judge Richard L. Hodge on 10/23/2008. (asb)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ALBANY DIVISION JAMES RUFUS PERRY, JR., Petitioner VS. FREDERICK J. HEAD, Warden, Respondent. : : : : : : : : : : :

1 : 05-CV-128 (WLS)

RECOMMENDATION On August 13, 2008, the undersigned issued a recommendation on the merits of this federal habeas petition. Although the district judge to whom this matter is assigned has not yet ruled upon this recommendation, a subsequently filed Motion to Dismiss filed by the petitioner remains pending herein. In this motion, the petitioner seeks to have this matter dismissed without prejudice so that he can refile the petition with the added support of allegedly newly discovered evidence.

Inasmuch as the undersigned has issued a recommendation on the merits of the petition, it is the recommendation that petitioner's Motion to Dismiss without prejudice be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may file written objections to this recommendation with the Honorable W. Louis Sands, United States District Judge, WITHIN TEN (10) DAYS of receipt thereof.

SO RECOMMENDED, this 23rd day of October, 2008.

/s/ Richard L. Hodge RICHARD L. HODGE UNITED STATES MAGISTRATE JUDGE