Brooks v. Morgan County Sheriff

Filing 20

RECOMMENDATION to deny 16 MOTION to Dismiss Petition as Premature and/or for Lack of Exhaustion filed by respondent Steve Roberts, and to grant 19 MOTION to Dismiss Petition without Prejudice and to Reserve Rights for Appellate Review filed by petitioner Willie Robert Brooks. Objections to R&R due by 3/27/2009. Ordered by U.S. Mag Judge Claude W. Hicks, Jr. on 3/10/09. (CWH)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION WILLIE ROBERT BROOKS, Petitioner VS.

NO. 3:08-CV-109 (CDL)

STEVE ROBERTS, Respondent PROCEEDINGS UNDER 28 U.S.C. §2254 BEFORE THE U. S. MAGISTRATE JUDGE

RECOMMENDATION
Before the court is a MOTION TO DISMISS filed by respondent STEVE ROBERTS. Tab #16. Therein, respondent ROBERTS contends that the instant action should be dismissed without prejudice because petitioner BROOKS has not yet exhausted the state remedies available to him as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). . After an initial review of the respondent's motion, the undersigned directed petitioner BROOKS to file a response. Tab #18. In response, petitioner BROOKS filed a MOTION TO DISMISS wherein he admits that he has not yet exhausted his claims and, as such, requests that the instant action be dismissed without prejudice. Tab #19. In light of the foregoing, IT IS RECOMMENDED that the petitioner's MOTION TO DISMISS be GRANTED and that the respondent's MOTION TO DISMISS be DENIED as moot. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this recommendation with the district judge to whom this case is assigned, WITHIN TEN (10) DAYS after being served with a copy thereof. The Clerk is directed to serve the petitioner at the LAST ADDRESS provided by him. SO RECOMMENDED, this 10th day of March, 2009.

CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE