Ivey v. Warden, Hocking Correctional Facility

Filing 20

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. Signed by Judge Timothy S. Black on 2/3/2015. (mr1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STANLEY K. IVEY,
Petitioner,
vs.
WARDEN, HOCKING
CORRECTIONAL FACILITY,
Respondent.

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Case No. 1:13-cv-914
Judge Timothy S. Black
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-ofcounsel 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 ineffectiveassistance-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).

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IT IS SO ORDERED.
Date: 2/3/15

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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