Ivory v. Cassady

Filing 33

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Judge Cohens Report and Recommendation # 31 , filed on February 2, 2016, is adopted and sustained in its entirety. IT IS FURTHER ORDERED that Respondents' motion to set aside the show-cause order # 15 is DENIED without prejudice. IT IS FURTHER ORDERED Respondents' motion to dismiss # 16 and Petitioner's motion for stay and abeyance # 22 are DENIED in part and GRANTED in part so that the two unexhausted grounds for relief, groun ds ten and thirty, are dismissed without prejudice. IT IS FURTHER ORDERED that an Amended Case Management Order referring this case back to Magistrate Judge Patricia L. Cohen for a report and recommendation on all dispositive and non-dispositive matters and re-setting case management deadlines will be issued by separate order. Signed by District Judge Rodney W. Sippel on 2/26/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER JAMES IVORY,
Petitioner,
v.
JAY CASSADY and CHRIS KOSTER,
Respondents.

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Case No. 4:14 CV 2093 RWS

MEMORANDUM AND ORDER
Petitioner Christopher James Ivory seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254. I referred this matter to United States Magistrate Judge Patricia L. Cohen for a report and
recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b). On February 9, 2016,
the Magistrate Judge filed her recommendation addressing the motion of Respondents Jay
Cassady and Chris Koster to set aside the show cause order, Respondents’ motion to dismiss, and
Petitioner’s motion for stay and abeyance. See [#31]. The Magistrate Judge recommends
denying without prejudice Respondents’ motion to set aside the show cause order, dismissing
without prejudice Petitioner’s two unexhausted grounds for relief, and the continued
consideration of Petitioner’s exhausted grounds for relief.
Petitioner timely objected to the Magistrate Judge’s Report and Recommendation on
February 22, 2016. Petitioner’s sole objection is that the Magistrate Judge erroneously stated
that Petitioner was convicted of “forcible rape” rather than “attempt forcible rape.” See [#32].
Petitioner is correct that his conviction was for attempted forcible rape and not forcible rape, so
the record shall reflect that fact.

As for the merits of the Magistrate Judge’s Report and Recommendation, after careful
consideration, I will adopt and sustain the thorough reasoning of the Magistrate Judge and I will
deny without prejudice Respondents’ motion to set aside the show cause order, dismiss without
prejudice Petitioner’s two unexhausted grounds for relief (grounds ten and thirty), and will refer
this case back to Magistrate Judge Patricia L. Cohen for a report and recommendation on all
remaining dispositive and non-dispositive matters. 28 U.S.C. § 636(b).
Accordingly,
IT IS HEREBY ORDERED that Judge Cohen’s Report and Recommendation #[31]
filed on February 2, 2016 is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Respondents' motion to set aside the show-cause
order #[15] is DENIED without prejudice.
IT IS FURTHER ORDERED Respondents' motion to dismiss #[16] and Petitioner's
motion for stay and abeyance #[22] are DENIED in part and GRANTED in part so that the two
unexhausted grounds for relief, grounds ten and thirty, are dismissed without prejudice.
IT IS FURTHER ORDERED that an Amended Case Management Order referring this
case back to Magistrate Judge Patricia L. Cohen for a report and recommendation on all
dispositive and non-dispositive matters and re-setting case management deadlines will be issued
by separate order.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 26th day of February, 2016.

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