Kincaid v. Miller et al

Filing 34

ORDER ADOPTING 29 Report and Recommendation, DENYING 1 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, DENYING 4 Motion for Hearing filed by Roger Frank Kincaid, DENYING 24 Motion to Supplement filed by Roger Frank Kincaid, DENYING 25 Motion to Supplement filed by Roger Frank Kincaid, DENYING 31 Motion to Stay Case filed by Roger Frank Kincaid. Signed by Honorable Stephen P. Friot on 11/22/2016. (llg)

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

ROGER KINCAID,
Petitioner,
-vsCARL BEAR, Warden,
Respondent.

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Case No. CIV-14-736-F

ORDER
Petitioner, Roger Frank Kincaid, a state inmate proceeding pro se, seeks habeas
relief under 28 U.S.C. § 2254 from his conviction and sentence. On September 14,
2016, United States Magistrate Judge Suzanne Mitchell issued a Report and
Recommendation, recommending the denial of petitioner’s § 2254 petition, the
motions for supplementation and the motion for an evidentiary hearing.
Presently before the court is petitioner’s objection to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1), the court has conducted
a de novo review of the matter. Having done so, the court concurs with the analysis
of Magistrate Judge Mitchell. The court need not repeat that analysis here. The court
finds petitioner’s objection to be without merit. Therefore, the court accepts, adopts
and affirms the Report and Recommendation in its entirety.
After the Report and Recommendation was issued, petitioner filed a motion to
stay these proceedings pending his exhaustion of claims of newly discovered evidence
in state court. A federal district court may exercise limited discretion to stay the
proceedings in an action seeking habeas relief when a petitioner who presents a claim
that has not yet been exhausted in state court shows: (1) good cause for his failure to

exhaust the claim before seeking relief in federal court; (2) the claim is not plainly
meritless; and (3) he has not engaged in intentionally dilatory litigation tactics. See,
Rhines v. Weber, 544 U.S. 269, 273-278 (2005). Here, the court concludes that
petitioner, in his motion, has not satisfied any of the criteria for a stay. The court thus
concludes that petitioner’s motion should be denied.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Suzanne Mitchell on September 14, 2016 (doc. no. 29) is
ACCEPTED, ADOPTED and AFFIRMED. Petitioner’s petition under 28 U.S.C.
§ 2254 for writ of habeas corpus (doc. no. 1) is DENIED. Petitioner’s motions for
supplementation and motion for an evidentiary hearing (doc. nos. 4, 24, 25) are
DENIED. Petitioner’s motion to stay (doc. no. 31) is DENIED. Judgment shall issue
forthwith.
DATED November 22, 2016.

14-0736p003.wpd

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