Grantham v. Ballard

Filing 30

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [DKT. NO. 27] AND STAYING CASE. The Court ADOPTS the R&R Dkt. No. 27 ; DENIES WITHOUT PREJUDICE Ballards Motion for Judgment on the Pleadings Dkt. No. 22 ; DENIES AS MOOT Grantham s Motion for an Order Directing the State Court to Provide a Hearing and Fully Adjudicate Petitioners Ineffective Assistance of Counsel Claim Dkt. No. 26 ; Court STAYS the case. Court DIRECTS Grantham to file his unexhausted claims in state court within 30 days of receipt of this Order; to file quarterly reports, beginning on April 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. Signed by Senior Judge Irene M. Keeley on 2/28/2018. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 2/28/2018: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS A. GRANTHAM, JR.,
Petitioner,
v.

CIVIL ACTION NO. 1:17CV95
(Judge Keeley)

DAVID BALLARD, Warden,
Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 27] AND STAYING CASE
On May 25, 2017, the pro se petitioner, Thomas A. Grantham,
Jr. (“Grantham”), filed the pending Petition Under 28 U.S.C. § 2254
for

Writ

of

Habeas

Corpus

by

a

Person

in

State

Custody

(“Petition”), seeking collateral review of his convictions in the
Circuit Court of Berkeley County, West Virginia, for second-degree
murder, attempted second-degree murder, and malicious assault (Dkt.
No. 1). In the Petition, Grantham presents five grounds for relief:
1) his counsel was ineffective, 2) the jury was not impartial,
3) his case should have been severed, 4) the trial court gave an
erroneous

jury

instruction

regarding

concerted

action,

and

5) cumulative error resulted in the violation of his due process
rights. Id. at 6-19. Pursuant to 28 U.S.C. § 636 and the local
rules, the Court referred the Petition to the Honorable Michael J.
Aloi, United States Magistrate Judge, for initial review.
On August 4, 2017, the respondent, Warden David Ballard
(“Ballard”), moved for judgment on the pleadings, contending that

GRANTHAM V. BALLARD

1:17CV95

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 27] AND STAYING CASE
Grantham failed to exhaust two of his grounds for relief in state
court

(Dkt.

No.

22).

More

particularly,

Ballard

argued

that

Grantham’s ineffective assistance of counsel claim was dismissed
solely on the basis of state law, and that Grantham failed to
present his cumulative error claim to the Supreme Court of Appeals
(Dkt. No. 23 at 4-7). Noting that Grantham had filed a “mixed
petition,” Ballard asked the Court to dismiss the Petition without
prejudice so that Grantham “may pursue and exhaust his available
state remedies.” Id. at 7. In response, Grantham agreed that he had
filed a mixed petition and asked the Court to dismiss his Petition
without prejudice and order the state court to entertain and
adjudicate his unexhausted claims (Dkt. No. 26 at 2-4).
In a Report and Recommendation (“R&R”) entered on January 16,
2018,

Magistrate

Judge

Aloi

reasoned

that

Grantham

had

only

exhausted his second ground for relief, the claim that he was
deprived of an impartial jury (Dkt. No. 27 at 18-19). Grounds One,
Three, and Four present different legal theories than squarely
presented on appeal to West Virginia’s highest court, while Ground
Five was not raised at all to the Supreme Court of Appeals. Id. at
19-21. Acknowledging that dismissing Grantham’s Petition without
prejudice would bar further review under § 2254 due to the one-year
limitation under the Anti-Terrorism and Effective Death Penalty
2

GRANTHAM V. BALLARD

1:17CV95

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 27] AND STAYING CASE
Act, Magistrate Judge Aloi reasoned that Grantham qualifies instead
for

a

stay

and

abeyance.

Id.

at

22-28.

Therefore,

the

R&R

recommended that the Court grant Ballard’s motion and dismiss the
Petition unless Grantham elected to either sever his unexhausted
claims or consent to a stay and abeyance while he exhausts his
claims in state court. Id. at 28-29.
The R&R also informed Grantham of his right to file “written
objections identifying those portions of the recommendation to
which objection is made and the basis for such objections.” Id. at
29. It further warned that the failure to do so may result in
waiver of the right to appeal. Id. On January 24, 2018, Grantham
filed his self-styled “Objections and Agreed Option of a Stay and
Abeyance to Report and Recommendation” (Dkt. No. 29). Although
styled in part as an objection,1 Grantham’s filing elects to have

1

In the R&R, Magistrate Judge Aloi noted that Grantham’s
Petition fails to reference any federal law, but ultimately relied
on the federal law that Grantham cited in state-court documents
attached to the Petition (Dkt. No. 27 at 18-19). In his objection,
Grantham “yields to the report” that the Petition does not
reference federal law, but explains that he did not cite any
because the court-approved form instructed him not to do so (Dkt.
No. 29 at 1). Given that Magistrate Judge Aloi resolved this issue
in Grantham’s favor, and the failure to specifically cite federal
law does not affect the recommendation in the R&R, the Court need
not consider Grantham’s related objection.
3

GRANTHAM V. BALLARD

1:17CV95

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 27] AND STAYING CASE
the Court stay the case and hold his Petition abeyance pending
further efforts to exhaust his claims in state court. Id.
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).
Here, Grantham has not raised any specific objections to
Magistrate Judge Aloi’s recommendations, and in fact agrees that
the Court should stay this case and hold the Petition in abeyance.
Because Grantham has not objected, the Court is under no obligation
to conduct a de novo review. Dellacirprete, 479 F. Supp. 2d at 60304. 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:

4

GRANTHAM V. BALLARD

1:17CV95

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 27] AND STAYING CASE
1)

ADOPTS the R&R (Dkt. No. 27);

2)

DENIES WITHOUT PREJUDICE Ballard’s Motion for Judgment on
the Pleadings (Dkt. No. 22);

3)

DENIES AS MOOT Grantham’s Motion for an Order Directing
the State Court to Provide a Hearing and Fully Adjudicate
Petitioner’s Ineffective Assistance of Counsel Claim
(Dkt. No. 26);

4)

STAYS the case; and

5)

DIRECTS Grantham to file his unexhausted claims in state
court within 30 days of receipt of this Order; to file
quarterly reports, beginning on April 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.

It is so ORDERED.
The Court DIRECTS the Clerk to transmit this Order to counsel
of record and to the pro se petitioner, by certified mail and
return receipt requested.
DATED: February 28, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
5