Velvick v. Antonelli

Filing 22

ORDER ADOPTING 16 Report and Recommendation; GRANTING 13 Motion to Dismiss filed by FNU Antonelli; DISMISSING, pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases in the United States District Courts, any claims not addressed by res pondent's motion; DISMISSING, for lack of jurisdiction, petitioner's claims to the extent they arise under 28 U.S.C. § 2255; DENYING 14 Motion to Appoint Counsel filed by Caleb Loren Velvick. Signed by Honorable Stephen P. Friot on 5/30/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CALEB LOREN VELVICK,
Petitioner,
-vsBRYAN ANTONELLI, Warden,
Respondent.

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Case No. CIV-16-1374-F

ORDER
On March 31, 2017, United States Magistrate Judge Bernard M. Jones issued
a Report and Recommendation, recommending that (1) respondent’s motion to
dismiss petitioner’s 28 U.S.C. § 2241 habeas corpus petition be granted; (2) any
claims not addressed by respondent’s motion be dismissed pursuant to Rule 4 of the
Rules Governing Habeas Corpus Cases in the United States District Courts; (3) to
the extent petitioner’s claims arise under 28 U.S.C. § 2255, those claims be
dismissed for lack of jurisdiction; and (4) petitioner’s motion to appoint counsel be
denied.
Petitioner has timely objected to the Report and Recommendation and
respondent has filed a response. 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 Jones. The court need not repeat that analysis
here. Further, the court agrees with respondent and declines to address the new
argument advanced by petitioner for the first time in his objection. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (Issues raised for the first time in an

objection to the magistrate judge’s recommendation are deemed waived). The court
thus accepts, adopts and affirms the Report and Recommendation in its entirety.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Bernard M. Jones is ACCEPTED, ADOPTED and AFFIRMED.
Respondent’s Motion to Dismiss Petition for Habeas Corpus (doc. no. 13) is
GRANTED. Any claims not addressed by respondent’s motion are DISMISSED
pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases in the United States
District Courts. To the extent petitioner’s claims arise under 28 U.S.C. § 2255, those
claims are DISMISSED for lack of jurisdiction. Petitioner’s Motion to Appoint
Counsel (doc. no. 14) is DENIED.
IT IS SO ORDERED this 30th day of May, 2017.

16-1374p003.docx

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