Mills v. Bryant et al

Filing 23

ORDER adopting Report and Recommendations re 22 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 9/9/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KERRY EUGENE MILLS,
Plaintiff,
v.
JASON BRYANT, Warden
Oklahoma Department of
Corrections,
Defendant.

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Case No. CIV-15-619-D

ORDER
Petitioner, a state prisoner appearing pro se, filed the present action seeking
a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to
Magistrate Judge Suzanne Mitchell for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B), (C).1 The parties briefed their respective positions and, on
August 1, 2016, Judge Mitchell filed her Report and Recommendation (R&R)
[Doc. No. 22] in which she recommended that the Court grant Petitioner a
conditional writ of habeas corpus on Ground Six of his petition (ineffective
assistance of counsel). Id. at 11.

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Judge Mitchell’s initial R&R recommended that, pursuant to Younger v. Harris,
401 U.S. 37 (1971), the Court abstain from considering the petition, as Petitioner
had claims pending in state court [Doc. No. 8]. After the R&R was issued, the state
courts denied Petitioner’s pending application, thus negating the need for Younger
abstention. The matter was accordingly re-referred to Judge Mitchell for further
proceedings [Doc. No. 13].

In her R&R, Judge Mitchell advised the parties of the right to file objections
to the same and directed the parties to file any objections no later than August 22,
2016. The Magistrate Judge further admonished the parties that failure to timely
object would constitute a waiver of the right to appellate review of the factual and
legal issues addressed in the Report and Recommendation. The deadline for filing
objections has expired and to date, neither party has filed objections or sought an
extension of time in which to do so. Accordingly, the R&R [Doc. No. 22] is
ADOPTED as though fully set forth herein. A judgment shall be issued
accordingly.
IT IS SO ORDERED this 9th day of September, 2016.

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