Simpson v. Akers

Filing 13

MEMORANDUM OPINION AND ORDER adopting and incorporating the 9 Proposed Findings and Recommendation; denying the petitioner's 8 Letter-Form Motion to excuse exhaustion; and dismissing the petition without prejudice. The court DENIES a certificate of appealability. Signed by Judge Joseph R. Goodwin on 10/20/2010. (cc: petitioner; Magistrate Judge Stanley; attys; any unrepresented party) (taq)

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Simpson v. Akers Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION CORY SIMPSON, Petitioner, v. MARYCLAIRE AKERS, Respondent. CIVIL ACTION NO. 2:10-cv-01070 MEMORANDUM OPINION AND ORDER Pending before the court is the petitioner's habeas corpus petition filed pursuant to 28 U.S.C. 2254. This action was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to the court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. 636(b)(1)(B). The Magistrate Judge has submitted proposed findings of fact and recommended that the court dismiss the petition, without prejudice, for failure to exhaust state court remedies. The petitioner has filed specific objections to the Magistrate Judge's proposed findings of fact and recommendation [Docket 12]. After de novo review, the court FINDS that the petitioner's objections lack merit. More specifically, the petitioner maintains that he has exhausted his state court remedies because the Circuit Court of Kanawha County has dismissed a habeas petition that he filed in state court against the respondent. As the Magistrate Judge noted, however, a petitioner can exhaust his state remedies by filing a habeas petition in state court, "followed by filing a petition for appeal from an adverse ruling in the [Supreme Court of Appeals of West Virginia]." (Proposed Findings & Recommendation [Docket 9] at 3); see Moore v. Kirby, 879 F. Supp. 592, 593 (S.D. W. Va. 1995). Thus, the petitioner has not exhausted his state remedies until he has petitioned for appeal from the Circuit Court's dismissal of his habeas petition. Accordingly, the court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge, DENIES the petitioner's letter-form motion to excuse exhaustion [Docket 8], and DISMISSES the petition without prejudice. The court has additionally considered whether to grant a certificate of appealability. See 28 U.S.C. 2253(c). A certificate will not be granted unless there is "a substantial showing of the denial of a constitutional right." Id. 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is not satisfied in this instance. Accordingly, the court DENIES a certificate of appealability. The court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge Stanley, counsel of record, and any unrepresented party. ENTER: October 20, 2010 -2-

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