Summary
adopting the Magistrate Judge's Report and Recommendation to deny the respondent's motion to dismiss subject to reconsideration if the petitioner failed to withdraw his unexhausted claims within 30 days
Summary of this case from Houston v. Warden, Warren Corr. Inst.Opinion
Case No. 1:13-cv-914
02-03-2015
STANLEY K. IVEY, Petitioner, v. WARDEN, HOCKING CORRECTIONAL FACILITY, Respondent.
Magistrate Judge Karen L. Litkovitz
DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 14) AND REFERRING RESPONDENT'S RENEWED MOTION TO DISMISS (Doc. 18) TO THE UNITED STATES MAGISTRATE JUDGE FOR REPORT AND RECOMMENDATION
This case is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate Judge reviewed the pleadings filed with this Court, and, on November 12, 2014, submitted a Report and Recommendation. (Doc. 14).
The Magistrate Judge recommended that Respondent's motion to dismiss the "mixed" petition without prejudice on exhaustion grounds (Doc. 13) be denied subject to reconsideration in the event that Petitioner informs the Court in writing within thirty days of the date of filing of the Report and Recommendation that the ineffective-assistance-of-counsel claim alleged in Ground Three is based on evidence outside the record and yet does not withdraw that claim in order to proceed to judgment on the remaining grounds for relief alleged in the petition. Neither party filed objections.
As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court does determine that such Report and Recommendation should be and is hereby ADOPTED in its entirety.
This decision does not constitute a ruling on Respondent's renewed motion to dismiss (Doc. 18), filed in response to Petitioner's motion for an evidentiary hearing and for "discovery. . . to obtain critical medical records" that would support his ineffective-assistance-of-counsel claim (Doc. 18). The Court construes Respondent's renewed motion to dismiss (Doc. 18) as a motion for reconsideration in accordance with the Magistrate Judge's Report and Recommendation adopted herein and refers the motion to the Magistrate Judge for a Report and Recommendation on the exhaustion issue.
Accordingly, for the foregoing reasons:
1. Respondent's original motion to dismiss the "mixed" petition without prejudice on exhaustion grounds (Doc. 13) is DENIED; and
2. Respondent's renewed motion to dismiss (Doc. 18), which is construed as a motion for reconsideration in accordance with the Magistrate Judge's Report and Recommendation adopted herein, is REFERRED to the Magistrate Judge for Report and Recommendation in light of the Petitioner's motion for an evidentiary hearing and expert medical testimony (Doc. 16).
IT IS SO ORDERED. Date: 2/3/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge