Kitchen v. Ballard

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 32 , DENYING RESPONDENTS MOTION TO DISMISS (DKT. NO. 14 , AND GRANTING PETITIONERS MOTION FOR STAY AND ABEYANCE (DKT. NO. ]29]. Signed by District Judge Irene M. Keeley on 8/28/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KILTON L. KITCHEN,
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV169
(Judge Keeley)

DAVID BALLARD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 32],
DENYING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 14], AND
GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE [DKT. NO. 29]
On August 5, 2016, the pro se petitioner, Kilton L. Kitchen
(“Kitchen”), filed a Petition Under 28 U.S.C. § 2254 for Writ of
Habeaus Corpus by a Person in State Custody (“Petition”) (Dkt. No.
1). In the Petition, Kitchen claims that his Fifth, Sixth, and
Fourteenth Amendment rights were violated during the course of his
first-degree murder trial in the Circuit Court of Hampshire County,
West Virginia. More particularly, he asserts grounds for relief
regarding ineffective assistance of counsel, trial court error,
perjured testimony, prosecutorial misconduct, and insufficient
evidence. Id. at 4-8. The five grounds for relief are comprised of
at least eleven discrete claims. Pursuant to 28 U.S.C. § 636 and
the local rules, the Court referred Kitchen’s Petition to the
Honorable Michael J. Aloi, United States Magistrate Judge, for
initial review.
Following referral, Magistrate Judge Aloi granted Kitchen’s
motion to proceed in forma pauperis (Dkt. No. 5) and directed the

KITCHEN V. BALLARD

1:16CV169

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 32],
DENYING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 14], AND
GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE [DKT. NO. 29]
respondent, Warden David Ballard (“Ballard”), to show cause why the
Petition should not be granted (Dkt. No. 9). After receiving an
extension of time, Ballard moved to dismiss the Petition on
November 14, 2016, arguing that Kitchen had failed to exhaust his
state remedies (Dkt. No. 14).

Although he conceded that a number of

Kitchen’s claims have been exhausted in state court, Ballard argued
that at least seven of Kitchen’s claims have not been presented to
the Supreme Court of Appeals of West Virginia (Dkt. No. 15 at 911). Ballard therefore maintained that Kitchen had filed a mixed
petition that must be dismissed. Id. at 9.
Kitchen requested and received two extensions of time in which
to respond to Ballard’s motion to dismiss (Dkt. Nos. 20; 23).
Kitchen finally responded on March 10, 2017, at which time he moved
for a stay and abeyance in order to fully exhaust each of his
claims in state court (Dkt. Nos. 28; 29). In support, he averred
that, when he filed his Petition, he believed all of his claims had
been exhausted and that the time to pursue federal relief had
nearly expired (Dkt. No. 29 at 2-3). Kitchen now realizes that his
state habeas counsel made several material misrepresentations and
omitted claims from both his state habeas petition and subsequent
appeal. Id. at 3.

2

KITCHEN V. BALLARD

1:16CV169

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 32],
DENYING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 14], AND
GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE [DKT. NO. 29]
In a Report and Recommendation (“R&R”) entered on August 3,
2017,

Magistrate

Judge

Aloi

recommended

that

the

Court

deny

Ballard’s motion to dismiss and grant Kitchen’s motion for a stay
and abeyance (Dkt. No. 32). Following a review of Kitchen’s state
proceedings and the instant Petition, Magistrate Judge Aloi noted
that Kitchen had not contested that he had filed a mixed petition,
which would usually be dismissed without prejudice for failure to
exhaust. Id. at 9-10. Nonetheless, he reasoned that Supreme Court
precedent allows the district court to grant a stay and abeyance in
limited circumstances when “the petitioner had good cause for his
failure

to

exhaust,

his

unexhausted

claims

are

potentially

meritorious, and there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics.” Id. at 11. Finding
that Kitchen had satisfied each of these elements, Magistrate Judge
Aloi recommended that the Court grant a stay. Id. at 17.
The R&R also informed the parties of their right to file
“written

objections

identifying

those

portions

of

the

recommendation to which objections are made and the basis for such
objections.” Id. at 18. It further warned that the failure to do so
may result in waiver of the right to appeal. Id. Although Ballard
received the R&R through the Court’s electronic filing system, and

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KITCHEN V. BALLARD

1:16CV169

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 32],
DENYING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 14], AND
GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE [DKT. NO. 29]
Kitchen received it on August 8, 2017 (Dkt. No. 33), neither party
has filed any objections to the recommendations.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may
adopt,

without

recommendations

explanation,
to

which

any

the

of

the

prisoner

magistrate
does

not

judge’s
object.”

Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Courts will uphold those portions of a recommendation to which no
objection has been made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Because neither party has objected, the Court is under no
obligation to conduct a de novo review. Dellacirprete, 479 F. Supp.
2d at 603-04. Therefore, upon review of the R&R and the record for
clear error, the Court adopts the recommendation of the Magistrate
Judge for the reasons discussed in the R&R (Dkt. No. 32), and in
conclusion, the Court:
1.

ADOPTS the R&R (Dkt. No. 32);

2.

DENIES Ballard’s Motion to Dismiss for Failure to Exhaust
(Dkt. No. 14);
4

KITCHEN V. BALLARD

1:16CV169

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 32],
DENYING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 14], AND
GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE [DKT. NO. 29]
3.

GRANTS Kitchen’s Motion for a Stay and Abeyance (Dkt. No.
29);

4.

STAYS the case; and

5.

DIRECTS Kitchen to file his unexhausted claims in state
court within 30 days of receipt of this Order; to file
quarterly

reports,

beginning

on

January

1,

2018,

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.
Failure to comply with these requirements may result in
dismissal of the Petition.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to the pro se petitioner, certified mail
and return receipt requested.
DATED: August 28, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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