Carpenito v. NH Department of Corrections, Commissioner

Filing 13

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, recommending that the matter be dismissed without prejudice to the refiling of a timely petition upon completion of exhaustion in the state courts. Follow up on Objections to R&R on 5/18/2009. Signed by Magistrate Judge James R. Muirhead. (jab)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Carpenito v. William Wrenn, Commissioner, New Hampshire Department of Corrections REPORT AND RECOMMENDATION Civil No. 09-cv-021-SM

Before the Court is Anthony Carpenito's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, alleging that he is presently serving a sentence that has expired. matter initially came before me for preliminary review to determine whether or not the claim raised in the petition is facially valid and may proceed. See Rule 4 of the Rules The

Governing Section 2254 Cases in the United States District Courts ("§ 2254 Rules"); see also United States District Court District of New Hampshire Local Rule ("LR") 4.3(d)(2) (authorizing magistrate judge to preliminarily review pro se prisoner filings pursuant to 28 U.S.C. § 1915A). On February 27, 2009, I issued an Order directing Carpenito to amend his petition to demonstrate that the claim therein had

been fully exhausted in the state courts.

Carpenito has not Carpenito

filed anything with the Court in response to my Order.

has not, therefore, demonstrated that the claim in his petition has been exhausted. Accordingly, I recommend that this matter be

dismissed without prejudice to the refiling of a timely petition upon completion of exhaustion in the state courts. Any objections to this report and recommendation must be filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to appeal the district court's order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).

_________________________________ James R. Muirhead United States Magistrate Judge Date: cc: April 29, 2009 Anthony Carpenito, pro se

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