Holbrook v. Ballard

Filing 77

ORDER adopting and incorporating herein Magistrate Judge's 57 Proposed Findings and Recommendation; dismissing the claims listed herein; the remaining claims will be evaluated on their merits under the defendant's 11 Motion for Summary Judgment. Signed by Judge Joseph R. Goodwin on 2/21/2013. (cc: attys; any unrepresented party) (rea)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION TEX HOLBROOK, II, Petitioner, v. CIVIL ACTION NO. 2:12-cv-00953 DAVID BALLARD, Respondent. ORDER This case was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this 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 findings of fact and recommended that the court dismiss the following claims as being untimely, unexhausted, or not cognizable in federal habeas corpus: Ground 3 of the initial petition, to the extent that it raises claims of cumulative errors by the prosecuting attorney and/or the petitioner’s counsel, Ground 4, and Ground 6 of the initial petition, and Grounds C, F-1, F-2, G, H, I, J and K of the Amended Petition, and Ground L of the Amended Petition, to the extent that it alleged cumulative errors by the prosecuting attorney and/or the petitioner’s counsel. (Proposed Findings and Recommendation, [Docket 57], at 28). The remaining claims will be evaluated on their merits under the defendant’s motion for summary judgment [Docket 11]. The plaintiff filed multiple written objections to the Magistrate Judge’s findings of fact and recommendation, and although the objections in [Docket 60] were late by one day, I will still consider them. Having reviewed the petitioner’s objections de novo, the court FINDS that they are without merit. Accordingly, the court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge. The above-listed claims shall be DISMISSED. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: February 21, 2013

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