Mitchell v. Seifert
Filing
43
MEMORANDUM OPINION AND ORDER adopting the 34 Proposed Findings and Recommendation of the Magistrate Judge; and dismissing, without prejudice, petitioner's 8 Petition for Writ of Habeas Corpus (2254) Signed by Judge John T. Copenhaver, Jr. on 12/29/2014. (cc: petitioner; attys; magistrate judge; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RODGER D. MITCHELL,
Petitioner,
v.
Civil Action No.: 2:14-12761
KAREN PSZCZOLKOWSKI, Warden,
Northern Correctional Facility,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, filed March 18, 2014.
This action was previously referred to Cheryl A.
Eifert, United States Magistrate Judge, who, on October 27,
2014, submitted her Proposed Findings and Recommendation
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).
The
magistrate judge recommends that the petition be dismissed
without prejudice inasmuch as petitioner has not exhausted his
state remedies.
On November 5, 2014, the court received petitioner's
objections, which came in two separate documents.
The
objections do not meet the magistrate judge’s thorough analysis
respecting why petitioner has failed to exhaust his state court
remedies.
Petitioner is thus required to pursue the final
adjudication of his state habeas claims prior to seeking relief
in this court pursuant to section 2254.
The objections are not
meritorious.1
Based upon the foregoing discussion, it is ORDERED
that:
1.
The findings made in the Proposed Findings and
Recommendation of the magistrate judge be, and they
hereby are, adopted by the court; and
2.
The section 2254 petition, and this action, be, and
they hereby are, dismissed without prejudice.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record, any
unrepresented parties, and the magistrate judge.
DATED:
December 29, 2014
John T. Copenhaver, Jr.
United States District Judge
1
As noted by the magistrate judge, the petitioner currently
has an appeal pending before the Supreme Court of Appeals of
West Virginia. The court has learned from the clerk of the
supreme court of appeals that the response to petitioner’s brief
is due on January 15, 2015, with any reply to be filed by
February 5, 2015.
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