Strickland v. Allbaugh et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION 6 of Magistrate Judge Gary Purcell and administratively stays this federal habeas action pending petitioner's exhaustion of his three unexhausted claims; petitioner is directed to file a motion to reopen this action within 14 days of the date the Oklahoma Court of Criminal Appeals enters a final ruling on his pending application for state post-conviction relief. Signed by Honorable Joe Heaton on 02/05/2018. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MATTHEW S. STRICKLAND

)
)
)
)
)
)
)
)

Petitioner,
vs.
JIMMY MARTIN, Warden,
Respondent.

NO. CIV-17-0843-HE

ORDER
Petitioner Matthew S. Strickland filed this action seeking habeas relief pursuant to
28 U.S.C. § 2254. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred for
initial proceedings to Magistrate Judge Gary M. Purcell. He previously concluded that the
petition, which includes both exhausted and unexhausted claims, should be dismissed
without prejudice for failure to exhaust administrative remedies unless petitioner
voluntarily dismissed his three unexhausted claims.

Because of potential statute of

limitations issues, the matter was referred again to the magistrate judge for him to
determine whether the action should be stayed pursuant to Rhines v. Weber, 544 U.S. 269
(2005), pending the resolution of petitioner’s state court application for post-conviction
relief, which he filed on August 7, 2017.
The magistrate judge has issued a Supplemental Report and Recommendation
(“Report”). After considering the three Rhines factors and concluding that all three are
met here, he recommends that petitioner’s motion requesting a stay [Doc. #6] be granted.

Neither petitioner nor respondent objected to the Report. They thereby waived their
right to appellate review of the factual and legal issues it addressed. Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010); see 28 U.S.C. §636(b)(1)(C).
Accordingly, the court ADOPTS Magistrate Judge Purcell’s Report and
Recommendation and administratively stays this federal habeas action pending petitioner’s
exhaustion of his three unexhausted claims. Petitioner is directed to file a motion to reopen
this action within fourteen (14) days of the date the Oklahoma Court of Criminal Appeals
enters a final ruling on his pending application for state post-conviction relief.
IT IS SO ORDERED.
Dated this 5th day of February, 2018.

2