Harless v. Warden Ross Correctional Institution

Filing 12

ORDER AND REPORT AND RECOMMENDATION re 10 MOTION to Dismiss and 1 Petition for Writ of Habeas Corpus: The Magistrate Judge RECOMMENDS that Respondent's unopposed 10 Motion to Dismiss be GRANTED and that this action be DISMISSED.Peti tioner's 2 Motion to Appoint Counsel is DENIED. Objections to R&R due by 11/25/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/8/2016. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WARREN HARLESS,
CASE NO. 2:16-CV-00196
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth A. Preston Deavers

Petitioner,
v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. He asserts that he was improperly sentenced on his convictions pursuant to his guilty plea
in the Ashland County Court of Common Pleas on complicity to breaking and entering and
complicity to theft. However, Petitioner’s sentence apparently has now completely expired and
he has since been released from incarceration. Respondent therefore has filed a Motion to
Dismiss (ECF No. 10) this action as moot.
The Court expressly advised Petitioner that the failure to file a response to Respondent’s
Motion to Dismiss would result in this Court’s consideration of the Motion to Dismiss as
unopposed. Order (ECF No. 11.) Still, Petitioner has not filed a response in opposition to the
Motion to Dismiss. In view of the lack of any response from the Petitioner, the Court presumes
that Petitioner no longer wishes to pursue these proceedings and does not oppose the
Respondent’s motion.
Therefore, the Magistrate Judge RECOMMENDS that Respondent’s unopposed Motion
to Dismiss (ECF No. 10) be GRANTED and that this action be DISMISSED.
Petitioner’s Motion to Appoint Counsel (ECF No. 2) is DENIED.

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).
IT IS SO ORDERED.

_s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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