Carr v. Ballard
Filing
13
MEMORANDUM OPINION AND ORDER adopting and incorporating the 9 Proposed Findings and Recommendation by Magistrate Judge; denying the 2 Section 2254 petition and 4 supplemental petition; denying the 1 Application to Proceed without Prepaym ent of Fees and Costs; and directing that this action is dismissed and stricken from the docket; denying petitioner's 12 Motion for protective order. The Clerk is directed to return certain documents to petitioner which he attempted to file on 4/13/2012, without docketing. Signed by Judge John T. Copenhaver, Jr. on 8/17/2012. (cc: petitioner; attys; United States Magistrate Judge) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES D. W. CARR,
Petitioner,
v.
CIVIL ACTION NO. 2:12-0909
WARDEN DAVID BALLARD,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed March 28, 2012.
This action
was previously referred to the Honorable Mary E. Stanley, United
States Magistrate Judge, for submission to the court of her
proposed findings and recommendation (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636.
On April 19, 2012, the magistrate judge entered her
PF&R recommending that the petition be denied, along with the
supplemental petition also filed March 28, 2012, and the
Application to Proceed Without Prepayment of Fees and Costs.1
The magistrate judge additionally recommends that the Clerk
return to petitioner certain documents he attempted to file on
April 13, 2012. As will become apparent, none of these documents
relate to the disposition of the petition on the recommended
grounds. The Clerk is thus directed to return the documents to
petitioner without docketing.
1
The magistrate judge’s recommendation is based upon expiration of
the limitations period found in 28 U.S.C. § 2244(d)(2).
In sum,
petitioner’s state convictions became final on September 12,
2009.
The instant petition was filed two-and-one-half years
later on March 28, 2012.
On May 8, 2012, petitioner objected.2
He asserts that
his “known lack of capacity” warrants application of the
equitable tolling doctrine.
equitable tolling.
Section 2244(d) is subject to
One seeking the benefit of the doctrine,
however, must demonstrate “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way” and prevented timely filing.
Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010); Wood v. Milyard, 132 S.
Ct. 1826, 1831 n.3 (2012).
Even if one were to assume petitioner
has established the second requirement, he has failed to do
likewise as to the first.
In sum, there is no indication
petitioner has pursued relief seasonably.
On June 29, 2012, petitioner moved for a protective order.
The motion in essence asserts (1) petitioner’s innocence of the
state crimes to which he pled guilty, (2) that he was coerced
into entering his guilty pleas, and (3) that he is being mistreated
and denied necessary medical care. The first two claims are
subject to the aforementioned limitations analysis. The final
claim, which challenges prison conditions, is more properly
considered in the companion action filed by petitioner pursuant
to 42 U.S.C. § 1983. The court, accordingly, ORDERS that the
motion for a protective order be, and it hereby is, denied.
2
2
Petitioner next requests that a “committee” be
appointed to represent him inasmuch as he is “Mentally Retarded
and Mentally Disabled.”
(Objecs. at 2).
Petitioner does not
raise a substantial question respecting his competency.
See
Allen v. Calderon, 408 F.3d 1150, 1153–54 (9th Cir. 2005).
The
court thus declines to appoint a guardian.
Based upon a de novo review, and having found the
objections meritless, the court adopts and incorporates herein
the magistrate judge’s PF&R.
1.
It is ORDERED as follows:
That the section 2254 petition and supplemental
petition be, and they hereby are, denied;
2.
That the Application to Proceed Without Prepayment of
Fees and Costs be, and it hereby is, denied;
3.
That this action be, and it hereby is, dismissed and
stricken from the docket.
The Clerk is directed to forward copies of this written
opinion and order to the petitioner, all counsel of record, and
the United States Magistrate Judge.
DATED:
August 17, 2012
John T. Copenhaver, Jr.
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?