United States District Court, M.D. Georgia, Albany Division
W. LOUIS SANDS, Senior District Judge.
Presently pending before the Court is a Recommendation from United States Magistrate Judge Thomas Q. Langstaff filed December 22, 2014. (Doc. 16.) Therein, Judge Lang-staff recommends granting Petitioner's Motion to Dismiss Without Prejudice and denying as moot Respondent's Motion to Dismiss as Untimely. ( See id.; see also Docs. 7 & 13.) Judge Langstaff's Recommendation provided the Parties fourteen days to file objections. (Doc. 16 at 2.) Objections were due by January 5, 2015, and none were filed. ( See generally Docket.)
Judge Langstaff found that dismissal under Federal Rule of Civil Procedure 41(a)(2) was appropriate. (Doc. 16 at 2.) The Court echoes Judge Langstaff's reminder that 28 U.S.C. § 2244(d) establishes a one-year statute of limitations for habeas petitions challenging state court judgments. Other procedural limitations may apply. See 28 U.S.C. §§ 2244, 2254.
Upon full review and consideration of the record, the Court finds that Judge Lang-staff's Recommendation (Doc. 16) should be, and hereby is, ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein, together with the reasons stated and conclusions reached herein. Accordingly, Petitioner's Motion to Dismiss Without Prejudice (Doc. 13) is GRANTED and Respondent's Motion to Dismiss as Untimely is DENIED AS MOOT. The referenced Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED.
Under Rule 11(a) of the Rules Governing Section 2254 and 2255 Cases, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." And "when the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue... if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 478 ...