Mills v. Bryant et al

Filing 29

ORDER adopting Report and Recommendations re 28 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 1/4/2017. (mb)

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

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Case No. CIV-15-619-D

ORDER
Petitioner, appearing pro se, sought 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). Judge Mitchell found
Petitioner had been denied his right to a direct appeal through ineffective
assistance of counsel, and recommended that the Court grant Petitioner a
conditional writ of habeas corpus. See Report and Recommendation (R&R) [Doc.
No. 22]. There being no objection from the parties, the Court adopted the R&R
[Doc. No. 23]. Respondent subsequently moved the Court to clarify or modify its
Order and Judgment to instruct Petitioner to file an application for post-conviction
relief seeking an appeal out of time in the district court, and to clarify to Petitioner
that he is entitled to counsel after he is granted permission to file an appeal out of
time. Petitioner objected and the matter was re-referred to Judge Mitchell.

On December 1, 2016, Judge Mitchell issued a subsequent R&R [Doc. No.
28] in which she recommended that the Court grant Respondent’s motion to clarify
and set forth specific procedural guidelines for the parties to follow with respect to
Petitioner’s request for post-conviction relief. Id. at 4-5. 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 December 21, 2016. Id. at 5. Judge
Mitchell 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. Id. The deadline for filing
objections has expired and, to date, neither party has filed objections nor sought an
extension of time in which to do so. Accordingly, the R&R [Doc. No. 28] is
ADOPTED as though fully set forth herein. A modified judgment shall be issued
accordingly.
IT IS SO ORDERED this 4th day of January, 2017.

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