Middlebrook v. Warden Hocking Correctional Facility

Filing 13

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 12 ). Signed by Judge Timothy S. Black on 1/11/2017. (mr)(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
TERRANCE MIDDLEBROOK,
Petitioner,
vs.
WARDEN, HOCKING
CORRECTIONAL FACILITY
Respondent.

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Case No. 1:16-cv-694
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 12)
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 December 14, 2016, submitted
a Report and Recommendation. (Doc. 12). No objections were filed.
As required by 28 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 Recommendations should be and is hereby adopted in its
entirety. Accordingly, IT IS ORDERED that:
1)

Respondent’s motion to dismiss (Doc. 10) is DENIED;

2)

Petitioner’s petition for a writ of habeas corpus (Doc. 1) is
ADMINISTRATIVELY STAYED and TERMINATED on the Court’s
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active docket pending Petitioner’s exhaustion of his ineffective assistance
of appellate counsel claim in state court. This stay is conditioned on (1)
filing a delayed reopening application under Ohio R. App. P. 26(B) to the
Ohio Court of Appeals, First Appellate District, within 30 days, and (2)
filing a motion to reinstate the case on this Court’s active docket within 30
days after fully exhausting the state-court remedy through the requisite
levels of appellate review, which includes the Ohio Supreme Court.
Petitioner will be granted leave to reinstate this case on the Court’s active docket
when he has exhausted his ineffective-assistance-of-appellate-counsel claim in the state
courts based on a showing that he has complied with the above conditions of the stay.
IT IS SO ORDERED.
Date: 1/11/2017
Timothy S. Black
United States District Judge

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