McNemar v. Plumley

Filing 10

ORDER denying 4 Motion for Holding Petition for Writ of Habeas Corpus in Abeyance. Signed by Chief Judge John Preston Bailey on 5/10/13. copy mailed to pro se pet via cert. return rec't mail(njz) (Additional attachment(s) added on 5/10/2013: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

RICHARD B. McNEMAR,
Petitioner,
v.

CIVIL ACTION NO. 2:13-CV-27
(BAILEY)

MARVIN PLUMLEY,
Respondent.
ORDER DENYING MOTION TO HOLD IN ABEYANCE
I.

Introduction
On this day, the above-styled matter came before the Court for consideration of the

petitioner Richard B. McNemar’s Motion for Holding Petition for Writ of Habeas Corpus in
Abeyance [Doc. 4].
II.

Procedural History
On July 29, 2008, the petitioner was convicted following a jury trial of one count of

sexual abuse by a parent, guardian, custodian, or a person in a position of trust and one
count of sexual abuse in the first degree. See McNemar v. Ballard, 2012 WL 5990127
(W.Va. Nov. 30, 2012). The petitioner filed motions for a new trial and for judgment of
acquittal which were both denied on September 19, 2008. Id.
The petitioner filed his first petition for writ of habeas corpus in the Harrison County
Circuit Court on August 21, 2009 [Case. No. 09-C-378-3]. The petition was denied on July
1, 2010 and the denial was affirmed by the West Virginia Supreme Court of Appeals on
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November 30, 2012. Id.
The petitioner filed a second petition for state habeas relief in Harrison County
Circuit Court on March 15, 2013, alleging that counsel from his first habeas proceeding was
ineffective [Case No. 13-C-87-3]. As of this date, the second petition is pending before the
Harrison County Circuit Court.
On April 15, 2013 the petitioner filed the instant Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody in this Court [Doc. 1]. The petitioner
cites as grounds for the writ 1) ineffective assistance of trial counsel; 2) improper admission
of involuntary statements to police; 3) insufficient evidence to sustain a conviction; 4)
improper comments by the Government during closing arguments and 5) error by the trial
court in not allowing the petitioner to testify at trial as to his own childhood sexual abuse
experiences. The petitioner claims that each of the five grounds was raised in his state
post-conviction proceedings before both the Circuit Court and West Virginia Supreme
Court.
On April 18, 2013, the petitioner filed the instant motion for Holding Petition for Writ
of Habeas Corpus in Abeyance [Doc. 4]. In support of his motion, the petitioner states that
he “will not have time to exhaust the ineffective assistance claims in State Court
proceedings before the one-year time limit expires” [Doc. 4 at 2].
III.

Discussion
The timeliness of the petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA), effective April 24, 1996.
The statute provides that state prisoners must exhaust available state remedies prior to
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filing a Section 2254 petition in federal court. 28 U.S.C. § 2254(b)(1)(A); see also,
McDaniel v. Holland, 631 F.Supp. 1544, 1545 (S.D. W.Va. 1986) (“A federal court will not
entertain a state prisoner's petition for a writ of habeas corpus unless the prisoner has first
exhausted available state judicial remedies.”).
The Supreme Court has held that a federal district court may, under some
circumstances, stay a federal habeas petition containing both exhausted and unexhausted
claims in order to allow the petitioner to present the unexhausted claims to the state court.
Rhines v. Weber, 544 U.S. 269 (2005). A stay with respect to a mixed petition is only
appropriate when the District Court determines that “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 278.
Here, the petitioner makes no claims that his petition contains both exhausted and
unexhausted claims. The plaintiff states that all of the claims raised in the § 2254 petition
were raised by his habeas appeal to the County Court and subsequently the West Virginia
Supreme Court of Appeals (Doc. 1). Thus, the petitioner’s pending § 2254 petition is not
a mixed petition. As a result, the Court has no authority to hold his petition in abeyance
while he proceeds with his second state habeas corpus petition. Although this Court may
not hold the petition in abeyance, the statute of limitations under AEDPA are tolled while
the petitioner’s second habeas petition is pending.
The petitioner claims in his petition that “the filing of the successive petition in
Harrison County (WV) Circuit Court claiming ineffective assistance of habeas counsel
further tolled the one year time limit as contained in the statute of limitations.” The
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petitioner is correct that the filing of the successive petition further tolls the statute of
limitations.
The statute of limitations in AEDPA, under § 2244(d)(2), provides that the one-year
limitations period is tolled for “[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2). “[U]nder § 2244(d)(2) the entire period of state
post-conviction proceedings, from initial filing to final disposition by the highest state court
(whether decision on the merits, denial of certiorari, or expiration of the period of time to
seek further appellate review), is tolled from the limitations period for federal habeas corpus
petitioners . . .” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). Markley v. Coleman,
215 W. Va. 729, 733 (2004) permits a second habeas petition to address a claim for
ineffective assistance of prior habeas counsel. The Fourth Circuit has held that all
proceedings properly filed under W. Va. Code § 53-4A-1, et seq., West Virginia’s PostConviction Habeas Corpus Rules, are considered “collateral review” for purposes of tolling
the one-year limitation. See Walkowiak v. Haines, 272 F.3d 234, 238 (4th Cir. 2001).
Therefore, the second state habeas proceeding tolls the one-year limitation, if the state
proceeding was properly filed.
Although the petitioner’s second habeas petition raises grounds not included in his
pending federal petition, the second petition, if properly filed, tolls the statute of limitations.
IV.

Conclusion
The petitioner’s Motion for Holding Petition for Writ of Habeas Corpus in Abeyance

[Doc. 4] is DENIED.
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It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and to
mail a copy to the pro se petitioner.
DATED: May 10, 2013.

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