Carlton v. State of Tennessee, No. 3:2007cv00895 - Document 18 (M.D. Tenn. 2008)

Court Description: ORDER: The Report and Recommendations 16 is Accepted and Approved. Respondent's Motion to Dismiss 12 is Granted. This case is Dismissed Without Prejudice. Entry of this Order on the docket shall constitute entryof a final judgment in accorda nce with Federal Rules of Civil Procedure 58 and 79(a). Further, because Petitioner cannot demonstrate reasonable jurists would find it debatable whether the Court was correct in determining Petitioner has failed to establish that he has exhausted his state remedies, a Certificate of Appealability will not issue. Signed by Senior Judge Robert Echols on 9/29/08. (cc: petitioner by reg. & cert. mail) (dt) Modified Text on 9/29/2008 (dt).

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Carlton v. State of Tennessee Doc. 18 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ANTON CARLTON, ) ) ) ) ) ) ) ) ) Petitioner, v. STATE OF TENNESSEE, Respondent. Case No. 3:07-0895 Judge Echols ORDER This matter is before the Court on a Report and Recommendation (R & R) (Docket Entry No. 16) in which the Magistrate Judge recommends granting Respondent’s unopposed Motion to Dismiss (Docket Entry No. 12) and dismissing without prejudice Petitioner’s habeas corpus petition. The R & R was issued on September 5, 2008, and no objections have been filed thereto, even though the parties were informed in the R & R that any objections needed to be filed within ten (10) days of receipt of the R & R (Docket Entry No. 16 at 4). Where, as here, no objections are made to the R & R, “[t]he district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b). Having reviewed the R & R and the file in this case, the Court finds that the Magistrate Judge was correct in determining that the habeas corpus petition should be dismissed without prejudice because 1 Dockets.Justia.com Petitioner has failed to show that he has exhausted available state remedies. Accordingly, the Court rules as follows: (1) The R & R (Docket Entry No. 16) is hereby ACCEPTED and APPROVED; (2) Respondent’s Motion to Dismiss (Docket Entry No. 12) is hereby GRANTED; (3) This case is hereby DISMISSED WITHOUT PREJUDICE; and (4) Entry of this Order on the docket shall constitute entry of a final judgment in accordance with Federal Rules of Civil Procedure 58 and 79(a). Further, because Petitioner cannot demonstrate reasonable jurists would find it debatable whether the Court was correct in determining Petitioner has failed to establish that he has exhausted his state remedies, a Certificate of Appealability will not issue. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). It is so ORDERED. ______________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE 2

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