Opinion
CASE NO. 10-5921 RJB/JRC
10-18-2011
KEVIN JOSEPH SMITH, Petitioner, v. SCOTT FRAKES, Respondent.
ORDER ON REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge J. Richard Creatura. Dkt. 25. The Court has considered the pleadings filed regarding the motion, the Report and Recommendation, the objections, and the remaining record.
On December 14, 2010, Petitioner filed this habeas corpus petition to challenge his conviction for unlawful possession of methamphetamine and bail jumping. Dkt. 5. On April 18, 2011, Petitioner was ordered to submit an amended petition that clearly set forth his claims and grounds for relief on or before June 10, 2011. Dkt. 17. Petitioner did not file an amended petition. On July 6, 2011, the Report and Recommendation (Dkt. 25) was filed, recommending dismissal of the petition without prejudice for failing to prosecute the case.
On July 29, 2011, petitioner filed a Motion to Stay the case (Dkt. 27) and Objections to the Report and Recommendation (Dkt. 26). Petitioner stated that he had been undergoing treatment for a serious medical illness and the medication he was taking was making his vision blurry and sometimes he had vision loss. Id. Petitioner moved for a stay of this case because he alleged that as a result of his vision issues, he was temporarily unable to read and write. Dkt. 27, at 1-2.
Petitioner's motion for a stay was granted, in part, and denied, in part. He was given until September 30, 2011, to file his amended petition, if he wished. Dkt. 29. The Report and Recommendation (Dkt. 25) was renoted to October 14, 2011. Id.
On September 20, 2011, Petitioner filed his amended petition. Dkt. 30. Accordingly, the Report and Recommendation (Dkt. 25) should not be adopted. Respondent has filed an answer. Dkt. 31. The case should be re-referred to the Magistrate Judge for further proceedings.
Accordingly it is ORDERED that,
• The Report and Recommendation (Dkt. 25) IS NOT ADOPTED;
• This case is RE-REFERRED to the Magistrate Judge for further proceedings.
The Clerk is directed to send uncertified copies of this Order to all counsel of record, to any party appearing pro se at said party's last known address, and the Hon. J. Richard Creatura.
ROBERT J. BRYAN
United States District Judge