Merson v. OCCC Warden

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 8/10/2017. Copy sent certified mail, return receipt to both OCCC and CCC addresses per law clerk.(tlg) (Additional attachment(s) added on 8/10/2017: # 1 Certified Mail Return Receipt) (tlg).

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

DOUGLAS MICHAEL MERSON,
Petitioner,
v.

CIVIL ACTION NO.: 3:17-CV-8
(GROH)

OCCC WARDEN,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge Robert W. Trumble. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Trumble for submission
of an R&R. On May 31, 2017, Magistrate Judge Trumble issued his R&R, recommending
that this Court dismiss the Petitioner’s 28 U.S.C. § 2254 petition without prejudice for
failure to exhaust state court remedies.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a petitioner’s right to appeal this Court’s Order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United

States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In this case, pursuant to 28 U.S.C.
§ 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, objections to
Magistrate Judge Trumble’s R&R were due within fourteen days after being served with
a copy of the same. The Petitioner was served with the R&R on June 12, 2017. To date,
neither party has filed objections. Accordingly, the Court will review the R&R for clear
error.
Upon careful review, the legal analysis contained within the R&R is sound.
However, on May 30, 2017—one day before the R&R was entered—the West Virginia
Supreme Court of Appeals denied the Petitioner’s request for habeas relief. To date, a
writ of certiorari has not been filed. The Petitioner has ninety days from the West Virginia
Supreme Court’s denial of his habeas petition to file a writ of certiorari with the United
States Supreme Court, which is August 28, 2017. See Sup. Ct. Rule 13. Therefore, the
West Virginia Supreme Court’s decision is not yet final and, accordingly, the Petitioner
has not properly exhausted his state court remedies.
Based upon the aforementioned, it is the opinion of this Court that Magistrate
Judge Trumble’s Report and Recommendation [ECF No. 13] should be, and is, hereby
ORDERED ADOPTED. The Court ORDERS that the Petitioner’s 28 U.S.C. § 2254
petition [ECF Nos. 1, 4] is DISMISSED WITHOUT PREJUDICE. The Petitioner may refile
his habeas claim after he has exhausted all available state remedies.
The Clerk is DIRECTED to strike this matter from the active docket and transmit
copies of this Order to all counsel of record and the pro se Petitioner.
DATED: August 10, 2017

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