Hess v. Turner

Filing 15

REPORT AND RECOMMENDATIONS that the 11 MOTION to Dismiss for Lack of Prosecution be granted & that the 1 Petition for Writ of Habeas Corpus be dismissed. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 7/31/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN W. HESS ,

CASE NO. 2:13-cv-0343
Petitioner,

v.

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

NEIL TURNER, WARDEN,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, formerly a state prisoner, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on Respondent’s
motion to dismiss for failure to prosecute. For the reasons that follow, the Magistrate
Judge RECOMMENDS that the motion be GRANTED and that petitioner’s claims be
DISMISSED.
I. PROCEDURAL HISTORY
This case was filed on April 4, 2013 in the Northern District of Ohio. According
to the petition, which petitioner signed on March 17, 2013, petitioner was then
incarcerated at the North Central Correctional Complex, serving a four-year sentence
for gross sexual imposition and disseminating matters harmful to juveniles. The
sentence was imposed on November 20, 2009. (Doc. 1). The case was then transferred
to this Court because the conviction occurred in Morrow County. (Doc. 3).
This Court issued a show cause order on April 16, 2013. It was mailed to

petitioner at his institution but came back marked “Not deliverable as addressed.”
(Doc. 7). The Court then attempted delivery at a different address, 36979 Beach Fork
Rd, Pomeroy OH 45769. That mailing was not returned and appears to have been
successfully delivered.
On June 7, 2013, Respondent moved to dismiss the case for failure to prosecute,
noting that all of its attempts to communicate with petitioner by mail at his institution
had also been unsuccessful. The Court notes that two of its orders, Docs. 9 and 12, have
also been returned; both were addressed to petitioner at his institution. Petitioner has
not updated his address with the Court.
The failure of petitioner to provide the Court with a current address is a strong
indication that he no longer wishes to pursue this case. Enough time has passed to
allow the Court to reach that conclusion. It is therefore recommended that the motion
to dismiss (Doc. 11) be granted. However, the Clerk will be directed to serve a copy of
this Report and Recommendation upon petitioner at 36979 Beach Fork Rd, Pomeroy OH
45769. If he fails to respond, the Court should enter an order adopting the Report and
Recommendation and dismissing the case.
II. RECOMMENDED DISPOSITION
For all the foregoing reasons, the Magistrate Judge RECOMMENDS that
Respondent’s motion to dismiss (Doc. 11) be granted and that the petition for a writ of
habeas corpus be DISMISSED. The Clerk shall mail a copy of this Report and
Recommendation to petitioner at 36979 Beach Fork Rd, Pomeroy OH 45769.
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III. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. Upon proper objections, a
judge of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a waiver of the right to
appeal the decision of the District Court adopting the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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