Carter v. Ballard
Filing
51
MEMORANDUM OPINION & ORDER Adopting 43 Proposed Findings and Recommendations; denying without prejudice Petitioner's 9 Petition for Writ of Habeas Corpus; denying as moot Petitioner's 44 MOTION to Stay; denying and dismissing without prejudice Petitioner's 18 MOTION for Return of Property; denying and dismissing with prejudice Petitioner's 30 MOTION for a Writ of Prohibition; denying without prejudice Respondent's 32 MOTION to Dismiss. Signed by Judge Joseph R. Goodwin on 3/4/2015. (cc: attys; Mag Judge Eifert; any unrepresented party) (tmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KENNETH E. CARTER,
Petitioner,
v.
CIVIL ACTION NO. 2:14-cv-11952
DAVID BALLARD,
Respondent.
MEMORANDUM OPINION & ORDER
Pending before the court are Petitioner Kenneth E. Carter’s (“Carter”) Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Docket 9]; Petition for Court Order for the
Expropriated Case Material [Docket 18]; and Petition for Writ of Prohibition [Docket 30]. Also
pending is Respondent’s Motion to Dismiss Petition for Writ of Habeas Corpus for Failure to
Exhaust [Docket 32]. The petitions and Motion to Dismiss were referred to the Honorable Cheryl
A. Eifert, United States Magistrate Judge, for submission to this court of proposed findings of
fact and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B) (2012).1 On
December 16, 2014, the Magistrate Judge submitted proposed findings of fact and recommended
this court to rule as follows:
1. DENY without prejudice Carter’s Petition for Writ of Habeas Corpus [Docket 9] on the
basis that Carter failed to exhaust his state court remedies as to some of his claims;
1
On December 17, 2014, Carter also filed a “Petition of Observance for Stay and Abeyance” [Docket 44]. I do not
interpret this as an objection to the Magistrate Judge’s proposed findings of fact and recommendation (“PF&R”)
because the notarization date on the Petition indicates that it was drafted and filed on December 15, 2014, the day
before the PF&R was entered. Instead, I consider it as a request for a stay and abeyance, which is rendered moot by
this order, as explained below.
2. DENY without prejudice Respondent’s Motion to Dismiss [Docket 32];
3. GRANT a thirty-day STAY to Carter to pursue his state court remedies for his
unexhausted claims;
4. Hold Carter’s habeas petition in ABEYANCE, pending exhaustion of state court
remedies, and require Carter to return to federal court within thirty days of exhausting
those remedies to seek a lift of the stay;
5. DENY and DISMISS with prejudice Carter’s Petition for a Writ of Prohibition [Docket
30]; and
6. DENY and DISMISS without prejudice Carter’s Petition for Court Order for the
Expropriated Case Material [Docket 18].
Carter filed a Response to Proposed Findings and Recommendations (“Response”) on December
29, 2014 [Docket 46]. The court construes the Response as a timely objection to the Magistrate
Judge’s Proposed Findings of Fact and Recommendation (“PF&R”). See Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978) (finding that district courts “must be especially solicitous” when
a civil rights plaintiff appears pro se).
In his Response, Carter appears to specifically object to the Magistrate Judge’s denial of
his Petition for a Writ of Prohibition, in which Carter asked for an order “revers[ing] and
dismiss[ing]” the state circuit court’s order requiring him to pay for DNA testing. (Petition for a
Writ of Prohbition [Docket 30], at 5). Having reviewed the petitioner’s objection de novo, see 28
U.S.C. § 636(b)(1)(C) (requiring de novo review of the portions of the PF&R to which objection
is made), the court FINDS that it lacks merit. While Carter argues that a writ of prohibition “is
proper remedy to prevent execution of costs,” (Resp. [Docket 46], at 4), the law, as the
2
Magistrate Judge explained, suggests otherwise. A writ of prohibition is used to “suspend all
action” and “to prevent any further proceeding in the prohibited direction.” United States v.
Hoffman, 71 U.S. 158, 161–62 (1866). Carter’s request for the court to effectively reverse the
state circuit court’s order requiring Carter to pay for DNA testing does not fit within this
purpose. See, e.g., Bates v. McNeil, 888 S.W.2d 642, 644 (Ark. 1994) (stating that a writ of
prohibition “cannot be invoked to correct an order already entered”). Accordingly, the court
OVERRULES Carter’s objection and ADOPTS the Magistrate Judge’s PF&R on this matter.
Carter’s Petition for Writ of Prohibition [Docket 30] is thereby DENIED and DISMISSED with
prejudice.
Carter’s Response does not appear to raise any further objections to the Magistrate
Judge’s PF&R. However, in the event of a stay, Carter asks the district court to “modernize
conditions timely upon the State Court for management with scheduled status reports” to ensure
that “[the] case is not placed on [the] back burner.” (Resp. [Docket 46], at 4). I read this as a
request for me to oversee the state court’s review of Carter’s unexhausted claims. This court
lacks the power to engage in such oversight. See Landis v. N. Am. Co., 299 U.S. 248, 254–55
(1936) (describing “the power inherent in every court to control the disposition of causes on its
docket with economy of time and effort for itself, for counsel, and for litigants”); Tarr v.
Manchester Ins. Corp., 544 F.2d 14, 14–15 (1st Cir. 1976) (explaining that it would be
“inappropriate” for a federal court “to usurp the state court’s control of its docket”). Thus,
Carter’s request is DENIED, and to the extent that it can be construed as an objection, is
OVERRULED.
3
Seeing no other objections and finding no clear error on the face of the record, I ADOPT
and INCORPORATE the Magistrate Judge’s PF&R in its entirety. Accordingly, Carter’s
Petition for Writ of Habeas Corpus [Docket 9] and Respondent’s Motion to Dismiss [Docket 32]
are DENIED without prejudice. I ORDER that Carter’s habeas petition be STAYED and
HELD IN ABEYANCE for thirty days from the entry of this order so that Carter can pursue his
unexhausted claims in state court, and I DIRECT Carter to return to federal court within thirty
days of exhausting his state court remedies to seek a lift of the stay. Carter’s Petition of
Observance for Stay and Abeyance [Docket 44] is therefore DENIED as moot. Carter’s Petition
for a Writ of Prohibition [Docket 30] is DENIED and DISMISSED with prejudice, and
Carter’s Petition for Court Order for the Expropriated Case Material [Docket 18] is DENIED
and DISMISSED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to Magistrate Judge Eifert,
counsel of record, and any unrepresented party.
ENTER:
4
March 4, 2015
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