Scott v. Warden, Noble Correctional Institution

Filing 17

ORDER denying 14 Motion to Reinstate; adopting Report and Recommendations re 16 Report and Recommendations. Signed by Judge Algenon L. Marbley on 1/5/2017. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ANTHONY A. SCOTT, Petitioner, v. Case No. 2:15-cv-2638 JUDGE ALGENON L. MARBLEY Magistrate Judge King WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent. ORDER On April 5, 2016, this Court dismissed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, without prejudice, as unexhausted. Order (ECF No. 12; Judgment (ECF No. 13). Petitioner thereafter filed a motion to reopen these proceedings pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, on the basis that he has now exhausted his state court remedies. Motion to Reinstate, Refiled [sic] and/or Reopen Habeas Corpus Action Filed July 22, 2015 (Fed. R. Civ. P. 60) (ECF No. 14). On December 6, 2016, the Magistrate Judge recommended that Petitioner’s motion be denied. Report and Recommendation (ECF No. 16.) Although the parties were advised of the right to object to the recommendation, and of the consequences of their failure to do so, no objections have been filed. The Report and Recommendation (ECF No. 16) is ADOPTED AND AFFIRMED. Petitioner’s Motion to Reinstate, Refiled [sic] and/or Reopen Habeas Corpus Action Filed July 22, 2015 (Fed. R. Civ. P. 60) (ECF No. 14) is DENIED. Petitioner remains free, however, to file a new federal habeas petition in a separate action in order to present his exhausted claims. See, e.g., Slack v. McDaniel, 529 U.S. 473, 485-86 (2000)(habeas petition filed after an initial petition was dismissed for failure to exhaust is not a “second or successive” petition within the meaning of 28 U.S.C. § 2244(b)). DATED: January 5, 2017 s/Algenon L. Marbley Algenon L. Marbley United States District Judge 2

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