ORDER OVERRULING PETITIONER'S OBJECTION [40], DENYING PETITIONER'S MOTION OF JUDGMENT [39], ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [38], GRANTING RESPONDENT'S MOTION TO DISMISS [10], AND DISMISSING PETITION [1] WITHOUT PREJUDICE

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is Petitioner Adrian O. Moore's Objection [40] to United States Magistrate Judge F. Keith Ball's Report and Recommendation [38] entered on January 16, 2019, Petitioner's Motion of Judgment [39], and Respondent Warden Andrew Mills' Motion [10] to Dismiss. After consideration of the proposed findings of fact and conclusions set forth in the Report and Recommendation, the record, and relevant legal authority, the Court finds that Petitioner's Objection should be overruled, his Motion of Judgment should be denied, the Report and Recommendation should be adopted as the finding of the Court, Respondent's Motion should be granted, and Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody should be dismissed without prejudice.

I. RELEVANT BACKGROUND

On May 7, 2018, Adrian O. Moore ("Moore" or "Petitioner") filed a Petition [1] Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, alleging violations of his constitutional rights and asking the Court to vacate his state court sentences for murder and aggravated assault and remand for a new trial, or to dismiss his state court convictions and expunge the state court record. Pet. [1] at 1-18. Petitioner admits that he "did not file a motion for habeas corpus, in the (state) court of my trial" because after the direct appeal of his convictions to the Mississippi Supreme Court was denied, he ceased to address his case to the state courts. Id. at 6, 11. Respondent Warden Andrew Mills ("Respondent") has filed a Motion [10] to Dismiss arguing that the Petition is untimely because it was filed more than one year after Moore's convictions became final, or, alternatively, that the Petition should be dismissed because Moore failed to exhaust his state court remedies. Mot. To Dismiss [10] at 1-13.

On January 16, 2019, the Magistrate Judge entered a Report and Recommendation [38] finding that, because Petitioner had "failed to exhaust his available state court remedies," the Petition [1] should be dismissed without prejudice. R. & R. [38] at 1-6. Petitioner filed an Objection [40] to the Report and Recommendation on February 1, 2019, seeking, in pertinent part, that the Court "waive the time bar."1 Obj. [40] at 1-6. Petitioner has also filed a Motion of Judgment [39] which appears to seek an appeal of the Magistrate Judge's January 16, 2019, Text Only Order denying as moot his Motion for Sanctions [31], Motion to Quash [12], Motion to Amend/Correct [15], (untitled) Motion [21], Motion for Writ [23], and Motion to Grant in Objection [25].

II. DISCUSSION

A. Standard of Review

Because Petitioner has submitted an Objection [40] to the Magistrate's Report and Recommendation [38], this Court is required to make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) (citing 28 U.S.C. § 636(b)(1)). However, the court need not "reiterate the findings and conclusions of the magistrate judge." Id. Nor must it consider "[f]rivolous, conclusive or general objections." Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). With respect to those portions of the Report and Recommendation to which Petitioner did not object, the Court need only review those findings under a clearly erroneous or contrary to law standard. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

The Court is mindful that Congress, through the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2241, et seq., has restricted federal court Review of habeas petitions filed on behalf of persons in state custody. White v. Thaler, 610 F.3d 890, 898 (5th Cir. 2010). Specifically, 28 U.S.C. § 2254(d) provides as follows:

28 U.S.C. § 2254(d).

The AEDPA's substantively deferential posture towards the judgment of state courts comports with its procedural requirement that a petitioner must exhaust his remedies in state court before turning to the federal system for relief. Carty v. Thaler, 583 F.3d 244, 254 (5th Cir. 2009); see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("Comity, in these circumstances, dictates that [the petitioner] use the State's established appellate review procedures before he presents his claims to a federal court."); Preiser v. Rodriguez, 411 U.S. 475, 491 (1973) ("The rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal-state comity."); Deters v. Collins, 985 F.2d 789, 794 (5th Cir. 1993) ("[T]he most dominant and important concern of exhaustion is that of comity: State courts should have the first opportunity to make right their mistakes."). "When undertaking review, `we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts.'" Carty, 583 F.3d at 253-54 (quoting O'Sullivan, 526 U.S. at 848).

The exhaustion requirement is set forth in § 2254(b) states in pertinent part as follows:

28 U.S.C. § 2254(b)(1)(A)-(B)(i-ii).

Congress has generally prohibited federal courts from granting habeas relief to persons in state custody unless a petitioner first presents his claim to the state court. See 28 U.S.C. § 2254(b)-(c).

Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013).

B. Analysis

The Report and Recommendation concluded that the Petition should be dismissed because Petitioner had not exhausted his available state court remedies. R. & R. [38] 4-6. A review of Moore's Objection reflects that he objects to having his Petition dismissed as untimely; he does not appear to allege any basis in law or fact to establish that he ever pursued post-conviction relief in the state courts or that he exhausted his available state court remedies. Indeed, he admits in his Petition that he has not done so.2

Because the record clearly reflects that Petitioner has not exhausted his state court remedies, the Magistrate Judge properly recommended that the Petition be dismissed without prejudice on that basis. Johnson, 712 F.3d at 231. Petitioner's Motion of Judgment [39] should therefore be denied as moot.

Having conducted the required review, the Court concludes that the Magistrate Judge's Report and Recommendation thoroughly considered all issues and should be adopted as the opinion of the Court.

III. CONCLUSION

The Court finds that the Magistrate Judge properly recommended that Petitioner Adrian O. Moore's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 be dismissed without prejudice. The Report and Recommendation will be adopted as the opinion of this Court, and Petitioner's Motion of Judgment will be denied.

IT IS, THEREFORE, ORDERED AND ADJUDGED that, Petitioner Adrian O. Moore's Objection [40] to the Magistrate Judge's Report and Recommendation [38] entered in this case on January 16, 2019, is OVERRULED, and the Report and Recommendation is adopted as the opinion of this Court.

IT IS, FURTHER, ORDERED AND ADJUDGED that, Respondent Warden Andrew Mills' Motion to Dismiss [10] is GRANTED.

IT IS, FURTHER, ORDERED AND ADJUDGED that, Petitioner Adrian O. Moore's Motion of Judgment [39] is DENIED, and his Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus [1] filed May 7, 2018, is DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies. A separate judgment will be entered in accordance with this Order, as required by Rule 58 of the Federal Rules of Civil Procedure

SO ORDERED AND ADJUDGED.