Barnes v. Taylor

Filing 117

ORDER: 1. The Magistrate Judge's Recommended Disposition [R. 116 ] is ADOPTED as and for the Opinion of the Court; 2. The Clerk of the Court is DIRECTED to close this case for administrative and statistical purposes only. Nothing in this or der or in the related docket entry shall be considered a dismissal of this matter; and 3. Upon receipt of a motion to reopen this case, the Court will, by separate order, instruct the Clerk to reopen this case for administrative purposes. Case Terminated. Signed by Judge Gregory F. Van Tatenhove on 3/13/2014.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON

BECKHAM B. BARNES,
Plaintiff,
V.
CLARK TAYLOR, WARDEN,
Defendant.

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Civil No. 09-299-GFVT

ORDER

This matter is before the Court pending review of the Report and Recommendation of
United States Magistrate Judge Candace J. Smith, filed on March 12, 2014. [R. 116.] The
Report and Recommendation addresses the posture of the Petitioner’s Motion for Stay and
Abeyance While Pursuing State Court Review. [R. 110.] In November, 2013, Barnes filed both
an Amended Petition [R. 111] which included new claims based on new evidence, and also a
motion seeking to stay this matter [R. 110] while exhausting his new claim in state court as
required by 28 U.S.C. § 2254(b)(1). Respondent does not oppose Barnes’ Motion for Stay and
Abeyance, and agrees that the Court should stay Barnes’ claims while he pursues exhaustion in
state court. [R. 114 at 5.]
The Report and Recommendation recognizes that the Supreme Court has found that a
stay and abeyance is appropriate in certain circumstances to allow a petitioner to exhaust his
claims in state court when good cause exists for the petitioner’s prior failure to exhaust such
claims. [R. 116 at 2 (citing Rhines v. Weber, 544 U.S. 269, 277-79 (2005).] The Report further
advises that Barnes has asserted good cause for not previously exhausting these claims, and that,

given the new evidence which was not previously disclosed to Barnes, his new claims are not
plainly meritless. [R. 116 at 2-3.] The Report therefore recommends that this matter be
administratively closed while Barnes returns to state court to exhaust his new claims.
The Report also indicates that the parties have waived the fourteen (14)-day period for
filing Objections to the Report and Recommendation. [R. 116 at 3.] Generally, this Court must
make a de novo determination of those portions of a recommended disposition to which
objections are made. 28 U.S.C. § 636(b)(1)(c). When no objections are made, however, this
Court is not required to “review . . . a magistrate’s factual or legal conclusions, under a de novo
or any other standard . . . .” Thomas v. Arn, 474 U.S. 140, 150 (1985). Parties who fail to object
to a Magistrate’s report and recommendation are also barred from appealing a district court’s
order adopting that report and recommendation. United States v. Walters, 638 F.2d 947 (6th Cir.
1981). Nevertheless, this Court has examined the record, and it agrees with the Magistrate
Judge’s Recommended Disposition.
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
1.

The Magistrate Judge’s Recommended Disposition [R. 116] is ADOPTED as and

for the Opinion of the Court;
2.

The Clerk of the Court is DIRECTED to close this case for administrative and

statistical purposes only. Nothing in this order or in the related docket entry shall be
considered a dismissal of this matter; and
3.

Upon receipt of a motion to reopen this case, the Court will, by separate order,

instruct the Clerk to reopen this case for administrative purposes.

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This 13th day of March, 2014.

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