Hymel v. Harvanek

Filing 14

ORDER ADOPTING 9 Report and Recommendation, DENYING 6 Motion to Appoint Counsel filed by Rex Lyle Hymel, DENYING as moot 11 Motion for Leave to Proceed in forma pauperis filed by Rex Lyle Hymel, DENYING 12 Motion to Appoint Counsel filed by Rex Lyle Hymel, DENYING certificate of appealability. Signed by Honorable Stephen P. Friot on 5/21/14. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

REX LYLE HYMEL,
Petitioner,
vs.
KAMERON HARVENEK, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. CIV-14-0273-F

ORDER
Petitioner, a state prisoner appearing pro se whose pleadings are liberally
construed, brings this action seeking habeas relief under 28 U.S.C. § 2254.
The magistrate judge entered a Report and Recommendation in this matter on
April 23, 2014 (the Report), recommending the petition be dismissed without
prejudice after preliminary review, for failure to exhaust available state judicial
remedies. Doc. no. 9. The Report also recommends that petitioner’s motion for
appointment of counsel be denied.
Petitioner filed an objection to the Report on May 6, 2014. Doc. no. 13. The
court reviews all objected to issues de novo. After de novo review, and having
considered defendant’s objection, the court concurs with the magistrate judge’s
determinations and concludes that it would not be useful to cite any additional
arguments or authorities here. Accordingly, the Report and Recommendation is
ACCEPTED, ADOPTED and AFFIRMED in its entirety. After preliminary review,
this action is DISMISSED without prejudice for failure to exhaust available state
judicial remedies. Petitioner’s motion for appointment of counsel is DENIED. Doc.
no. 6.

Petitioner filed two motions after the entry of the Report. The first of these is
an application to proceed in forma pauperis. Doc. no. 11. Petitioner has already paid
the filing fee. For this reason, and also because this order dismisses this action,
petitioner’s motion to proceed in forma pauperis is DENIED as moot. Petitioner’s
other recent motion seeks appointment of counsel. Doc. no. 12. This motion is
redundant of the earlier-filed motion for appointment of counsel, already denied. The
recently-filed motion for appointment of counsel is DENIED.
A certificate of appealability is DENIED.
Dated this 21st day of May, 2014.

14-0273p002.wpd

-2-