Opinion
CASE NO. 2:13-CV-991
08-04-2014
THOMAS CHILDERS, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
On June 26, 2014, the Magistrate Judge issued a Report and Recommendation recommending that Respondent's Motion to Dismiss the instant petition under 28 U.S.C. § 2254 be granted and that this action be dismissed without prejudice as unexhausted. Alternatively, the Magistrate Judge recommended that Petitioner be permitted to delete his unexhausted claim and proceed on his remaining claims. On July 9, 2014, Petitioner filed an Objection to the Magistrate Judge's Report and Recommendation.
Petitioner raises no new arguments in support of his Objection. He again argues that futility warrants an exception to the exhaustion requirement in this case, and alternatively, that a stay pending exhaustion is appropriate. In the event that the Court overrules Petitioner's Objection, Petitioner requests to delete his unexhausted claim of ineffective assistance of appellate counsel and proceed on his remaining claims.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons already addressed in the Magistrate Judge's Report and Recommendation, Petitioner's Objection, (Doc. No. 13) is not well taken and is OVERRULED. The Report and Recommendation, (Doc. No. 11), is ADOPTED and AFFIRMED. Petitioner's request for a stay is DENIED. Petitioner's request to delete this claim and proceed on his remaining exhausted claims is GRANTED. Respondent's Motion to Dismiss (Doc. No. 9) is accordingly DENIED AS MOOT to the extent that Petitioner's unexhausted claim of ineffective assistance of appellate counsel is now deleted from the Petition.
Respondent is DIRECTED to file an answer to the Petition that complies with Rule 5 of the Rules Governing Section § 2254 Cases in the United States District Courts within twenty-one (21) days. Petitioner may file a response within twenty-one (21) days thereafter.
IT IS SO ORDERED.
/s/_________
EDMUND A. SARGUS, JR.
United States District Court