Unpublished Dispositionalonzo Neal, Petitioner-appellant, v. William C. Seabold, Warden, Fred Cowan, Attorney General,respondents-appellees, 881 F.2d 1077 (6th Cir. 1989)

Before MERRITT and KENNEDY, Circuit Judges, and NICHOLAS J. WALINSKI, Senior District Judge.^* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Alonzo Neal moves for counsel and appeals from the district court's order dismissing his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Following a jury trial, Neal was convicted of second degree assault in violation of Ky.Rev.Stat. Sec. 508.020 and first degree promoting contraband in violation of Ky.Rev.Stat. Secs. 520.050. He received a five year sentence for the assault conviction and a one year sentence for the contraband conviction. These sentences are to run consecutively to each other and consecutively to the sentence being served at the time of the above conviction.

In his petition, Neal claimed that the trial court improperly denied his pro se discovery motions, and that he was denied timely and effective assistance of counsel.

After reviewing the respondent's motion to dismiss, Neal's response, and the magistrate's report and recommendation, the district court dismissed the petition without prejudice, as Neal failed to exhaust state remedies.

On appeal, Neal argues that he has exhausted his available state remedies. He also contends that he did not receive a copy of the magistrate's report and recommendation and, thus, could not file objections.

As an initial matter, although Neal failed to file objections to the magistrate's report and recommendation after being advised to do so, he contends that he did not receive a copy of the report and recommendation. This reason justifies an exception to the rule which states that a party who does not file timely objections to the magistrate's report and recommendation after being advised to do so waives his right to appeal. See Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir. 1987). As a result, the appeal is not waived.

Upon consideration, we affirm the dismissal of the petition, but for reasons other than those stated by the district court. See Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985).

The Kentucky Court of Appeals recently reversed Neal's conviction and remanded his case for a new trial. Neither the state nor Neal appealed this judgment, and it became final on March 27, 1989. As the state has decided not to appeal the reversal of Neal's conviction, Neal is no longer in custody pursuant to the judgment of conviction he seeks to attack. Therefore, we affirm the dismissal of the petition as it is moot.

For these reasons, the motion for counsel is denied, and the district court's order is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.