PRISONER HABEAS CORPUS 28 U.S.C. § 2254

JUSTIN S. ANAND, Magistrate Judge.

MAGISTRATE JUDGE'S ORDER AND NON-FINAL REPORT AND RECOMMENDATION

The matter is before the Court on Respondent's motion to dismiss the petition for lack of exhaustion with brief and accompanying exhibits [Docs. 12-13], Petitioner's reply thereto [Doc. 14], and Petitioner's notice of disposition and exhaustion of state's remedies [Doc. 15]. For the following reasons, the undersigned recommends that the motion to dismiss [Doc. 12] be DENIED.

Petitioner executed the instant federal habeas petition on June 12, 2017. (Doc. 1). Respondent filed a motion to dismiss the petition for lack of exhaustion on June 27, 2017, and argued that the Court should dismiss the petition without prejudice because Petitioner's application for a certificate of probable cause was still pending before the Georgia Supreme Court. (Doc. 12). On September 5, 2017, however, Petitioner notified the Court that the Georgia Supreme Court denied Petitioner's application for a certificate of probable cause on August 28, 2017. (Doc. 15). Petitioner submitted a copy of the Georgia Supreme Court's order with his notice. (Id.).

IT IS THEREFORE RECOMMENDED that Respondent's motion to dismiss the petition for lack of exhaustion [Doc. 12] BE DENIED.

IT IS ORDERED that Petitioner's application to proceed in forma pauperis [Doc. 10] be DENIED AS MOOT.1

IT IS FURTHER ORDERED that, if the District Court adopts the foregoing Report and Recommendation, Respondent shall have thirty (30) days from the receipt of the District Judge's Order of adoption to show cause why the writ should not be granted by addressing the merits of the instant petition in a more detailed response.

In connection therewith, Respondent shall transmit to this Court such pleadings, transcripts and decisions as are available and required to determine the issues raised.

IT IS SO RECOMMENDED AND ORDERED.