McFarland v. Ballard

Filing 42

ORDER ADOPTING MAGISTRATE JUDGE'S OPINION/REPORT AND RECOMMENDATION; Court ADOPTS the R&R Dkt. No. 40 ; DENIES the respondent's motion to dismiss the petition as untimely Dkt. No. 14 ; DENIES the respondents motion for summary judgment Dk t. No. 23 ; DENIES the respondents motion to dismiss for failure to exhaust Dkt. No. 31 ; GRANTS IN PART AND DENIES IN PART the petitioners motion to proceed with Martinez claims or to stay the proceeding pending exhaustion Dkt. No. 38 ; STAYS the case. Court DIRECTS the petitioner to file his unexhausted claims in state court within 30 days of receipt of this Order. Signed by District Judge Irene M. Keeley on 7/29/2016. (copy Counsel of record via CM/ECF, Copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/29/2016: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT MCFARLAND,
Petitioner,
v.

CIVIL ACTION NO. 1:15CV5
(Judge Keeley)

DAVID BALLARD, Warden,
Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S
OPINION/REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation
(“R&R”)

of

the

Honorable

Robert

W.

Trumble,

United

States

Magistrate Judge (Dkt. No. 40), dated July 8, 2016. Pursuant to 28
U.S.C. § 636(b)(1)(C), this Court is required to review de novo
those

portions

of

objection is made.

the

magistrate

judge’s

findings

to

which

Failure to file objections to the R&R permits

the Court to review the recommendation under the standards that it
believes

are

appropriate,

and

under

these

parties’ right to de novo review is waived.
468 F. Supp. 825 (E.D. Cal. 1979).
been filed.

circumstances,

the

See Webb v. Califano,

To date, no objections have

Accordingly, the review is for clear error.

Id.

Upon review of the R&R and the record, the Court adopts the
opinion of the Magistrate Judge for the reasons discussed in the
R&R.

Therefore, the Court:
1.

ADOPTS the R&R (Dkt. No. 40);

MCFARLAND V. BALLARD

1:15CV5

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
2.

DENIES the respondent's motion to dismiss the petition as
untimely (Dkt. No. 14);

3.

DENIES the respondent’s motion for summary judgment (Dkt.
No. 23);

4.

DENIES the respondent’s motion to dismiss for failure to
exhaust (Dkt. No. 31);

5.

GRANTS IN PART AND DENIES IN PART the petitioner’s motion
to proceed with Martinez claims or to stay the proceeding
pending exhaustion (Dkt. No. 38);

6.

STAYS the case; and

7.

DIRECTS the petitioner to file his unexhausted claims in
state court within 30 days of receipt of this Order; to
file quarterly reports, beginning on October 1, 2016,
explaining the status of his unexhausted claims; and to
file a notice of exhaustion within 30 days from the date
his state court remedies have been fully exhausted.

It is so ORDERED.

2

MCFARLAND V. BALLARD

1:15CV5

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
The Court DIRECTS the Clerk to transmit this Order to counsel
of record and to the pro se petitioner by certified mail, return
receipt requested.
DATED:

July 29, 2016.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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