Reeder v. Allen et al (INMATE3)

Filing 35

ORDER directing as follows: (1) petitioner's 32 motion to amend, which this court construes as an objection to the recommendation of the Mag Judge, be and the same is hereby OVERRULED; (2) petitioner's 34 motion for stay and abeyance is DENIED; (3) the 26 REPORT AND RECOMMENDATION of the Mag Judge be and the same is hereby ADOPTED, APPROVED and AFFIRMED; (4) the petition for habeas corpus relief be and the same is hereby DENIED and DISMISSED, without prejudice, for failure to exhaust his remedies in state court. Signed by Honorable Ira De Ment on 4/30/10. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M IC H A E L SCOTT REEDER, #232101 P e titio n e r, v. ) ) ) ) ) ) ) ) ) ) )

C iv il Action No. 2:09-cv-1035-ID (W O )

R IC H A R D ALLEN, et al., R e sp o n d e n ts .

ORDER
B e fo re the court are the Recommendation of the Magistrate Judge (Doc. #26), P e titio n e r's Motion to Amend Complaint (Doc. #32) which this court construes as an o b je c tio n to the Recommendation of the Magistrate Judge, and Petitioner's Motion for S ta y and Abeyance. (Doc. #34). Having conducted a de novo determination of those p o rtio n s of the Recommendation to which objections are made, it is CONSIDERED and O R D E R E D as follows: 1. P e titio n e r's Motion to Amend Complaint (Doc. #32), which this court c o n s tru e s as an objection to the Recommendation of the Magistrate Judge, b e and the same is hereby OVERRULED. 2. 3. P e titio n e r's Motion for Stay and Abeyance (Doc. #34) is DENIED. T h e Recommendation of the Magistrate Judge (Doc. #26) be and the same is hereby ADOPTED, APPROVED and AFFIRMED.

4.

T h e petition for habeas corpus relief filed by Michael Scott Reeder be and th e same is hereby DENIED and DISMISSED, without prejudice, for fa ilu re to exhaust his remedies in state court.1

DONE this 30th day of April, 2010.

/s / Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE

The court notes that the dismissal of the Petitioner's 28 U.S.C. § 2254 petition for failure to exhaust state remedies does not render a subsequent petition for a writ of habeas corpus second or successive under 28 U.S.C. § 2244(b). See, e.g., Slack v. McDaniel, 529 U.S. 473, 486-87, 120 S. Ct. 1595, 1605, 146 L. Ed. 2d 542 (2000). 2

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