Nelms v. Warden North Central Correctional Institution

Filing 23

ORDER granting 22 Motion for Reconsideration. The order adopting the Report and Recommendation, ECF No. 20 , as well as the Judgment, ECF No. 21 are VACATED. Signed by Judge George C. Smith on 6/21/2017. (agm)(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 DAVID NELMS, Petitioner, Case No. 2:16-cv-0160 JUDGE GEORGE C. SMITH Magistrate Judge King v. WARDEN, NORTH CENTRAL CORRECTIONAL COMPLEX, Respondent. ORDER This is an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 18, 2017, the United States Magistrate Judge recommended that the remaining claims be dismissed as either procedurally defaulted or without merit. Report and Recommendation, ECF No. 19. Objections to that recommendation were due June 1, 2017. On June 6, 2017, the Report and Recommendation was adopted without objection. Order, ECF No. 20. Final judgment was entered that same date. Judgment, ECF No. 21. This matter is now before the Court on Petitioner’s Motion for Reconsideration, ECF No. 22. In his motion, Petitioner represents that he timely submitted objections to the Report and Recommendation. Indeed, it appears that Petitioner submitted his objections, with attached exhibits, to prison officials for mailing on May 30, 2017. His objections were mailed to the Magistrate (but not to the Clerk) on June 1, 2017, and were received on approximately June 5, 2017. Under these circumstances, Petitioner’s objections were timely. See Houston v. Lack, 487 U.S. 266 (1988). Petitioner’s Motion for Reconsideration, ECF No. 22, is GRANTED. The order adopting the Report and Recommendation, ECF No. 20, as well as the judgment entered in this case, ECF No. 21, are VACATED. This case is RESTORED to the active docket of the Court, and the Report and Recommendation, ECF No. 19, is restored as a pending motion. The Clerk is DIRECTED to file Petitioner’s objection, with attached exhibits. If Respondent intends to respond to Petitioner’s objection, Respondent shall do so within fourteen (14) days of the date of this Order. IT IS SO ORDERED. s/ George C. Smith__________________ GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT 2

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