Wellborn #407313 v. Berghuis

Filing 36

ORDER DISMISSING REPORT AND RECOMMENDATION 32 and objections 35 as moot in light of an anticipated new Report and Recommendation; this matter is referred again to Magistrate Judge Brenneman for further briefing and other proceedings as appropriate in light of Smith v. Berghuis, 543 F.3d 326 (6th Cir. 2008); signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

CARL BURNIE WELLBORN, Petitioner, CASE NO. 1:05-CV-346 v. HON. ROBERT J. JONKER MARY BERGHUIS, Respondent. __________________________________/ ORDER This matter is before the Court on the Report and Recommendation of the Magistrate Judge (docket # 32) and Petitioner's Objections to the Report and Recommendation (docket # 35). Since the date of the Report and Recommendation and Objections, the Sixth Circuit has issued new authority that appears to bear directly on the issues in this case. See Smith v. Berghuis, 543 F.3d 326 (6th Cir. 2008). This new authority should be considered before any judgment enters in the case. Accordingly, IT IS ORDERED: the matter is referred again to the Magistrate Judge for further briefing and other proceedings as appropriate in light of Smith v. Berghuis, 543 F.3d 326 (6th Cir. 2008). The existing Report and Recommendation and the Plaintiff's objections to it, are

DISMISSED as moot in light of an anticipated new Report and Recommendation including analysis of the new appellate authority.

Dated:

February 6, 2009

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE