Perry v. Head

Filing 27

ORDER adopting 26 Report and Recommendations denying as moot 21 Motion to Dismiss Complaint and adopting 23 Report and Recommendations.Ordered by Judge W. Louis Sands on 3/31/09 (bjl)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ALBANY DIVISION JAMES RUFUS PERRY, JR., Petitioner, v. FREDERICK J. HEAD, Warden, Respondent. : : : : : : : : : : ORDER Before the Court is a Recommendation from United States Magistrate Judge Richard L. Hodge (Doc. #23), filed August 13, 2008. It is recommended that Petitioner's petition for federal habeas relief be denied because Petitioner's grounds do not adequately support relief or are procedurally defaulted. Petitioner filed his written objection (Doc. #24) on August 20, 2008. Petitioner essentially reiterates his prior argument and states his disagreement with the findings of the state habeas court and the conclusions reached by the magistrate judge. Upon review this Court agrees with the magistrate judge. Petitioner has failed to show that the decision of the state habeas court was either contrary to or an unreasonable application of the relevant federal law as determined and expressed by the United States Supreme Court. Accordingly, Petitioner's objection is OVERRULED. Upon full review upon the Record, the Court finds that said Report and Recommendation should be, and hereby is, ACCEPTED, ADOPTED and made the order of this Court for the reason of the findings made and reasons stated therein together with the reason stated and conclusions reached herein. Accordingly, Petitioner's petition for federal habeas relief is DENIED. It is also recommended (Doc.

1:05-CV-128 (WLS)

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#26, filed October 24, 2008) that Petitioner's motion to dismiss his petition without prejudice (Doc. #21), filed after issuance of the recommendation herein accepted and adopted, be DENIED. No objection has been filed. In that the Court denied Petitioner's federal habeas relief, the Recommendation is ACCEPTED and ADOPTED. Accordingly, Petitioner's motion for dismissal without prejudice is DENIED as moot.1 SO ORDERED, this 31st day of March, 2009.

/s/ W. Louis Sands W. LOUIS SANDS, JUDGE

UNITED STATES DISTRICT COURT

A review of Petitioner's motion shows that Petitioner states that "..Petitioner contends that due to some new information and newly discovered evidence it will be in Petitioner's [b]est interest to [d]ismiss the Application for (sic) it can be properly [f]iled [d]ue to the Newly Discovered Evidence." (Petitioner's Motion to Dismiss, para. #1). Petitioner fails to indicate in any way as to what this "new" evidence is and why it is germane to his petition such that a final ruling should be delayed. At this late stage, the issues having long been joined, without more, Petitioner's motion is due to be denied. 2

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