Jenkins v. Martin et al

Filing 8

ORDER DECLINING TO ADOPT 6 REPORT AND RECOMMENDATION; referring case to Magistrate Judge Shon T. Erwin; granting 7 MOTION to Amend; granting 5 MOTION to Amend. Signed by Honorable Robin J. Cauthron on 4/23/13. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL C. JENKINS,
Petitioner,
vs.
TERRY MARTIN, Warden, et al.,
Respondent.

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Case Number CIV-13-230-C

ORDER
This action for habeas corpus relief brought by a prisoner proceeding pro se, was
referred to United States Magistrate Judge Shon T. Erwin, consistent with the provisions of
28 U.S.C. § 636(b)(1)(B). Judge Erwin entered a Report and Recommendation (“R&R”) on
April 11, 2013, followed by Petitioner’s second Motion for Leave to Amend (Dkt. No. 7).
Petitioner seeks habeas relief from a conviction for forcible oral sodomy and lewd or
indecent acts with a child under sixteen. As noted by Judge Erwin, Petitioner’s habeas action
raises six grounds for relief: 1) the evidence was insufficient to prove his guilt; 2) the trial
court improperly admitted an interview of the victim; 3) the trial court improperly admitted
propensity evidence; 4) he was denied the opportunity to cross-examine a witness in violation
of the Confrontation Clause; 5) the jury was coerced into reaching a verdict by use of an
Allen charge; and 6) the cumulative effect of these errors deprived him of a fair trial. In the
R&R, Judge Erwin noted that Petitioner in his habeas Petition alleged exhaustion of only
claims 1 and 2, thus requiring dismissal as a “mixed” petition.

Petitioner now seeks to amend, arguing that he has exhausted all issues. If, as the
attached Oklahoma Court of Criminal Appeals opinion suggests, Petitioner has, in fact,
exhausted all claims raised, dismissal for failure to exhaust all claims would be inappropriate.
Accordingly, the Court will grant Petitioner’s Motion for Leave to Amend his Habeas
Petition.
As set forth more fully herein, Petitioner’s Motion for Leave to Amend (Dkt. No. 7)
is GRANTED. For that reason, the Court declines to adopt the Report and Recommendation
(Dkt. No. 6), except that Petitioner’s first Motion to Amend (Dkt. No. 5) is granted, and this
matter is recommitted to the Magistrate Judge for further proceedings consistent with the
original Order of Referral (Dkt. No. 4).
IT IS SO ORDERED this 23rd day of April, 2013.

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