Tessmer v. Chapman

Filing 17

ORDER granting 9 Motion to Dismiss; adopting Report and Recommendations re 16 Report and Recommendations. Ordered by Judge C. Ashley Royal on 9/9/08 (hrm)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ETHEL ELIZABETH TESSMER, Petitioner, vs. TOM CHAMPMAN, Warden, Respondent. ______________________________________ : : : : : : : : : 5:07-cv-314 (CAR) HABEAS CORPUS 28 U.S.C. 2254 ORDER ON THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Before the Court is a Report and Recommendation (Doc.16) from United States Magistrate Judge Claude W. Hicks, Jr., that recommends granting Respondent's Motion to Dismiss the Petition as Untimely (Doc. 9). No Objection has been filed within the time allowed. Nevertheless, pursuant to 28 U.S.C. 636(b)(1), the Court has thoroughly reviewed Respondent's Motion, Petitioner's Response to the Motion, and the Recommendation. As fully explained in the Recommendation, Petitioner does not dispute that her Petition is untimely, but rather alleges that the Court must hear the case because she asserts claims of actual innocence. While actual innocence is an exception to the limitations period specified in the Anti-Terrorism and Effective Death Penalty Act, a habeas petitioner must be able to support his or her claim of actual innocence with new reliable evidence to take advantage of the exception. Here, Petitioner relies on her own conclusory statements to support her claim of actual innocence, but has failed to provide the Court with any new evidence supporting her claim. Accordingly, the Recommendation is ACCEPTED, Respondent's Motion to Dismiss the Petition as Untimely is GRANTED, and Petitioner's Habeas Corpus Petition is DISMISSED. SO ORDERED, this 9th day of Sepember, 2008. S/ C. Ashley Royal C. ASHLEY ROYAL UNITED STATES DISTRICT JUDGE SCS/ssh

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