Lind v. Ballard
Filing
50
MEMORANDUM OPINION AND ORDER overruling petitioner's 49 Objections; adopting the 48 Proposed Findings and Recommendation to the extent it is consistent with this Memorandum Opinion and Order; denying petitioner's 25 Motion for Par tial Summary Judgment; denying petitioner's 42 Motion for Default Judgment and Request to Stay; affirming Magistrate Judge Eifert's denial of the Motion for Discovery without prejudice; as the Petition now includes both exhausted and unexhausted claims and a stay of this matter pending total exhaustion is not warranted, the Court ORDERS petitioner to notify the Court within 30 days of the entry of this Opinion whether he (1) voluntarily withdraws the entire Petition; or (2) withdraws the unexhausted claims discussed and set forth more fully herein. Signed by Judge Thomas E. Johnston on 9/23/2016. (cc: petitioner, pro se; counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JONATHAN JOSEPH LIND,
Petitioner,
v.
CIVIL ACTION NO. 2:14-cv-26284
DAVID BALLARD,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (the “Petition”), (ECF No. 1), Petitioner’s Motion for
Partial Summary Judgment, 1 (ECF No. 25), Petitioner’s Motion for Default Judgment and
Objection (the “Motion for Default Judgment”), (ECF No. 42), and Petitioner’s request to stay this
matter pending the total exhaustion of his claims (the “Request to Stay”), (ECF No. 32 at 4). By
Standing Order filed in this case on October 10, 2014, this action was referred to United States
Magistrate Judge Cheryl A. Eifert for total pretrial management and submission of proposed
findings of fact and recommendations for disposition. (ECF No. 9.) On April 27, 2016, Magistrate
Judge Eifert filed proposed findings of fact and recommendations for disposition (the “PF&R”),
in which she recommends that the Court deny the Motion for Partial Summary Judgment, the
Motion for Default Judgment, and the Request to Stay. (ECF No. 48 at 24‒25.) As pertinent here,
Petitioner entitled his Motion for Partial Summary Judgment as a “Motion for Partial Summary of Judgement [sic].”
(ECF No. 25 at 1.)
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Magistrate Judge Eifert also denied Petitioner’s Motion for Leave to Obtain Discovery (the
“Motion for Discovery”), (ECF No. 37 at 1‒3), in the PF&R, (ECF No. 48 at 21‒22). On May 11,
2016, Petitioner filed timely objections to the PF&R (the “Objections”). (ECF No. 49.)
For the reasons provided herein, the Court OVERRULES Petitioner’s Objections, (ECF
No. 49), ADOPTS the PF&R, (ECF No. 48), to the extent it is consistent with this Memorandum
Opinion and Order, DENIES Petitioner’s Motion for Partial Summary Judgment, (ECF No. 25),
Motion for Default Judgment, (ECF No. 42), and Request to Stay, (ECF No. 32 at 4), and
AFFIRMS Magistrate Judge Eifert’s denial of Petitioner’s Motion for Discovery without
prejudice, (ECF No. 48 at 21‒22).
I. Background
This case involves a collateral attack by a state prisoner on his conviction pursuant to 28
U.S.C. § 2254. The Petition states that, on March 28, 2007, Petitioner was convicted by a jury of
the following offenses: (1) second-degree murder; (2) first-degree robbery; and (3) three counts of
forgery of a credit card. (ECF No. 1 at 1.) The Petition further states that Petitioner was sentenced
on June 1, 2007 to a term of incarceration of 33 to 150 years. (Id.)
The Petition states that Petitioner filed a petition for a writ of habeas corpus in West
Virginia state circuit court on October 2, 2008. (Id. at 2.) According to the Petition, the state circuit
court denied this petition on April 17, 2009 and Petitioner did not appeal this ruling. (See id. at 3.)
The Petition also states that Petitioner filed a second petition for a writ of habeas corpus in West
Virginia state circuit court on November 17, 2009. (Id.) The state circuit court denied this second
petition on January 9, 2014, (id.), and the Supreme Court of Appeals of West Virginia affirmed
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the denial of Petitioner’s second state petition on August 31, 2015, Lind v. Ballard, No. 14‒0116,
2015 WL 5125884 (W. Va. Aug. 31, 2015).
Petitioner filed the instant Petition in this Court on September 30, 2014. (ECF No. 1.) While
the Petition was pending before this Court, Petitioner filed a third petition for a writ of habeas
corpus in West Virginia state circuit court on January 29, 2016. (ECF No. 48 at 3.) Magistrate
Judge Eifert’s chambers contacted the office of the circuit court where Petitioner’s third state
habeas petition is pending and determined that this petition includes the following grounds for
relief: (1) “ineffective assistance of state habeas counsel during [Petitioner’s] second state habeas
proceeding;” (2) “the circuit court erred because it failed to render specific [findings] of fact and
conclusions of law on all grounds;” and (3) “denial of due process when the trial court denied
[Petitioner’s] motion to appoint co-counsel.”2 (Id. at 3‒4.)
On October 22, 2015, Petitioner filed his Motion for Partial Summary Judgment. (ECF No.
25.) Respondent filed his opposition to the Motion for Partial Summary Judgment on March 24,
2016, (ECF No. 41), and Petitioner filed his reply in support of this motion on April 20, 2016,
(ECF No. 47 at 2‒4).
On January 13, 2016, Petitioner filed a Motion for Leave to Amend Pleadings (the “Motion
to Amend”), in which he requested to amend the Petition to include the same three claims that he
alleges in his pending third state habeas petition. (See ECF No. 32 at 2.) In the Motion to Amend,
Petitioner also requests that the Court stay this matter “so [he] can exhaust [t]hese [g]rounds in
[t]he state court.” (Id. at 4.) Respondent filed his opposition to the Motion to Amend on March 24,
On August 5, 2016, this Court’s chambers separately contacted the clerk’s office for the state circuit court where
Petitioner’s third state habeas petition is pending and confirmed that Petitioner’s pending state habeas petition includes
these three grounds.
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3
2016, (ECF No. 39), and Petitioner filed his reply in support of this motion on April 20, 2016,
(ECF No. 47 at 4‒5).
On February 26, 2016, Petitioner filed the Motion for Discovery. (ECF No. 37 at 1‒3.)
Respondent filed his opposition to the Motion for Discovery on March 24, 2016, (ECF No. 40),
and Petitioner filed his reply in support of this motion on April 20, 2016, (ECF No. 47 at 5‒7).
Finally, Petitioner filed his Motion for Default Judgment on March 30, 2016. (ECF No.
42.) Respondent filed his opposition to the Motion for Default Judgment on March 31, 2016, (ECF
No. 44), and Petitioner filed his reply in support of this motion on April 6, 2016, (ECF No. 44).
To date, Magistrate Judge Eifert has not ordered Respondent to answer the Petition. As
such, Respondent has not yet answered the Petition or filed materials relating to Petitioner’s state
proceedings.
On April 27, 2016, Magistrate Judge Eifert filed the PF&R, in which she granted the
Motion to Amend, denied the Motion for Discovery without prejudice, and recommends that the
Court deny the Motion for Partial Summary Judgment, the Motion for Default Judgment, and the
Request to Stay. (ECF No. 48 at 21‒25.) On May 11, 2016, Petitioner filed the Objections, in
which he raises objections regarding the Magistrate Judge’s ruling on the Motion for Discovery,
as well as her recommendations as to the Motion for Partial Summary Judgment and the Request
to Stay. (ECF No. 49.) As such, the PF&R, the Objections, the Motion for Partial Summary
Judgment, the Motion for Default Judgment, the Motion for Discovery, and the Request to Stay
are fully briefed and ready for disposition.
II. Legal Standard for Review of the PF&R
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Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the Court “must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3) (emphasis added). The Court is not required to review, under a de novo or any
other standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendations to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, this Court need not conduct a de novo review when a party “makes general
and conclusory objections that do not direct the Court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
However, “[t]he district court cannot artificially limit the scope of its review by resort to ordinary
prudential rules, such as waiver, provided that proper objection to the magistrate’s proposed
finding or conclusion has been made and the appellant’s right to de novo review by the district
court thereby established.” United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). In
reviewing those portions of the PF&R to which Petitioner objects, this Court will consider the fact
that Petitioner is acting pro se, and his filings will be accorded liberal construction. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
III. Discussion
Petitioner objects to two recommendations and one ruling provided by Magistrate Judge
Eifert in the PF&R. (See ECF No. 49.) For the reasons that follow, the Court overrules Petitioner’s
Objections.
A.
The Motion for Partial Summary Judgment
Petitioner first objects to Magistrate Judge Eifert’s recommendation that the Court should
deny Petitioner’s Motion for Partial Summary Judgment. (See ECF No. 49 at 1‒3.) In this motion,
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Petitioner does not seek summary judgment as to any of his grounds in the Petition. (See ECF No.
25.) Instead, Petitioner requests that the Court “forbid” Respondent in this federal proceeding from
“object[ing] to any and all claims [he] failed to object to in” the state habeas proceedings. (Id. at
4.) In the PF&R, Magistrate Judge Eifert recommends denying the Motion for Partial Summary
Judgment on the grounds that Respondent did not forfeit or waive any arguments it did not raise
in the state habeas proceedings. (See ECF No. 48 at 9‒11.) In his Objections, Petitioner renews his
argument that “abandoned matters may not be the subject of [f]ederal [h]abeas review.” (ECF No.
49 at 2‒3.)
While the Court agrees with the Magistrate Judge that the Motion for Partial Summary
Judgment is appropriately denied, it nonetheless finds that it need not reach the merits of this
motion. This action is still in its relative infancy. Indeed, Respondent has not yet filed an answer
to the Petition and the record does not include the relevant transcripts from Petitioner’s state
proceedings. See generally Rules Governing § 2254 Cases, Rule 5(a) (“The respondent is not
required to answer the petition unless a judge so orders.”); id., Rule 5(c) (“The answer must . . .
indicate what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) are
available, when they can be furnished, and what proceedings have been recorded but not
transcribed. The respondent must attach to the answer parts of the transcript that the respondent
considers relevant.”). As such, the Court is unable, at this time, to make any determination as to
whether Respondent raised or declined to raise any particular arguments in the state proceedings.
Furthermore, if the Court addresses the merits of this motion, it would be forced to speculate as to
what arguments or defenses Respondent might raise in this action. The Court declines to engage
in this speculative analysis. See, e.g., Andrade v. Martusello, No. 12‒CV‒6399 (RJS)(AJP), 2015
6
WL 4154108, at *5 (S.D.N.Y. July 8, 2015) (declining “to engage in speculation that is entirely
ungrounded in the [record]”); Taylor v. Holiday Isle, LLC, 561 F. Supp. 2d 1269, 1270 n.1 (S.D.
Ala. 2008) (“The Court will not make a party’s arguments for it, and will not hypothesize or
speculate as to what a party’s unspoken intentions might [be] . . . .”).
Ultimately, as this case is in its preliminary stages, the Court finds that Petitioner’s request
to “forbid” Respondent from raising any arguments or defenses is premature. The Court therefore
OVERRULES Petitioner’s Objections as to the Motion for Partial Summary Judgment, (ECF No.
49 at 1‒3), ADOPTS the PF&R, (ECF No. 48), insofar as Magistrate Judge Eifert recommends
denying this motion, and DENIES the Motion for Partial Summary Judgment, (ECF No. 25).
However, the Court denies this motion without prejudice and may revisit this issue―upon an
appropriate motion from Petitioner―as to specific arguments or defenses Respondent raises in
this case once Respondent has presented arguments or defenses regarding the Petition and the
record is supplemented with the materials from Petitioner’s state proceedings.3
B.
The Request to Stay
Petitioner next objects to the Magistrate Judge’s recommendation that the Court deny
Petitioner’s Request to Stay. (See ECF No. 49 at 3‒7.) In the Motion to Amend, Petitioner
requested to amend his Petition to include three additional grounds, as well as to stay the
proceedings “so [he] can exhaust [t]hese [g]rounds in [t]he state court.” (ECF No. 32.) In the
PF&R, Magistrate Judge Eifert granted Petitioner’s Motion to Amend insofar as Petitioner
In the PF&R, Magistrate Judge Eifert recommends that the Court deny Petitioner’s Motion for Default Judgment.
(ECF No. 48 at 23‒24.) Petitioner does not object to this recommendation. (See ECF No. 49.) Accordingly, the Court
ADOPTS the PF&R to the extent Magistrate Judge Eifert recommends the denial of the Motion for Default Judgment,
(ECF No. 42), and DENIES this motion, (id.). See generally Bros. of the Wheel M.C. Exec. Council, Inc. v. Mollohan,
909 F. Supp. 2d 506, 517 (S.D. W. Va. 2012) (“The Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendations to which no objections are addressed.” (citing Thomas v. Arn, 474 U.S. 140, 150 (1985))).
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requested to add three new claims, (ECF No. 48 at 13), which include the following: (1) a claim
that Petitioner’s habeas counsel in his second state habeas proceedings was constitutionally
ineffective; (2) a claim that the state habeas “court erred because it failed to render specific findings
of fact and conclusions of law on all grounds;” and (3) a claim that “Petitioner was denied due
process when the trial court denied [Petitioner’s] motion for” the appointment of “co-counsel,”
(ECF No. 32 at 2). The Magistrate Judge then found that Petitioner failed to exhaust these three
claims and no exception to the exhaustion requirement is applicable as to these claims. (See ECF
No. 48 at 13‒18.) Petitioner does not object to the Magistrate Judge’s ruling regarding his request
to amend the Petition or her findings as to exhaustion. (See ECF No. 49.) Instead, Petitioner objects
to the Magistrate Judge’s recommendation that the Court should deny the Request to Stay. (See id.
at 3‒7.) For the reasons that follow, the Court overrules this objection.
With the addition of Petitioner’s three new claims through his amendment, the Petition is
now a mixed petition―i.e., it now includes both exhausted claims and the three new unexhausted
claims. Prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the Supreme Court held “that federal district courts may not adjudicate mixed
petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.”
Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Lundy, 455 U.S. 509 (1982)). As such, the
Supreme Court “imposed a requirement of ‘total exhaustion’ and directed federal courts to
effectuate that requirement by dismissing mixed petitions without prejudice and allowing
petitioners to return to state court to present the unexhausted claims to that court in the first
instance.” Id. at 274 (citing Lundy, 455 U.S. at 552).
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AEDPA “preserved [this] total exhaustion requirement.” Id. (citing 28 U.S.C. §
2254(b)(1)(A)). However, in Rhines v. Weber, the Supreme Court noted that “the interplay
between AEDPA’s 1-year statute of limitations and [the] dismissal requirement” for mixed
petitions may disadvantage certain habeas petitioners. Id. In particular, “[i]f a petitioner files a
timely but mixed petition in federal district court, and the district court dismisses it . . . after the
limitations period has expired, this will likely mean the termination of any federal review.” Id. at
275. The Supreme Court therefore approved a “stay-and-abeyance” procedure where, “rather than
dismiss the mixed petition . . . , a district court might stay the petition and hold it in abeyance while
the petitioner returns to state court to exhaust his previously unexhausted claims.” Id.
The Supreme Court noted that, “if employed too frequently,” the stay-and-abeyance
procedure “has the potential to undermine . . . AEDPA’s objective of encouraging finality by
allowing a petitioner to delay the resolution of the federal proceedings,” as well as “AEDPA’s goal
of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his
claims in state court prior to filing his federal petition.” Id. at 277. As such, “stay and abeyance
[is] available only in limited circumstances.” Id. In particular, “the district court should stay, rather
than dismiss, the mixed petition” if “the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” Id. at 278.
In the present case, a stay and abeyance is not warranted because Petitioner’s unexhausted
claims―which he included in the Petition through the amendment―are not meritorious.
Petitioner’s first unexhausted claim alleges that his second state habeas counsel was
constitutionally ineffective. (ECF No. 32 at 2.) This claim is not cognizable in this proceeding, as
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AEDPA explicitly provides that “[t]he ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.” 28 U.S.C. § 2254(i); see also Martinez v. Ryan, 132 S. Ct. 1309, 1320
(2012) (Ҥ 2254(i) precludes [a petitioner] from relying on the ineffectiveness of his postconviction
attorney as a ground for relief . . . .” (citation omitted)).
In Petitioner’s second unexhausted claim, he alleges that the state habeas “court erred
because it failed to render specific findings of fact and conclusions of law on all grounds.” (ECF
No. 32 at 2.) This ground also lacks merit. “Pursuant to § 2254, a petitioner may obtain relief from
a state court judgment ‘only on the ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.’” Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008)
(quoting 28 U.S.C. § 2254(a)). “A state prisoner has no federal constitutional right to postconviction proceedings in state court.” Id. (citation omitted). “Thus, even where there is some error
in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the
assignment of error relating to those post-conviction proceedings represents an attack on a
proceeding collateral to detention and not to the detention itself.” Id. (citation omitted). In short,
“a challenge to . . . state habeas corpus proceedings . . . cannot provide a basis for federal habeas
relief.” Wright v. Angelone, 151 F.3d 151, 159 (4th Cir. 1998) (citation omitted); see also Bryant
v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (“[C]laims of error occurring in a state postconviction proceeding cannot serve as a basis for federal habeas corpus relief.” (alteration and
citations omitted)). As such, Petitioner’s second unexhausted claim, which alleges a purported
error in his state habeas proceeding, does not provide a basis for federal habeas relief.
10
Finally, in his third unexhausted claim, Petitioner asserts that he “was denied due process
when the trial court denied [Petitioner’s] motion for” the appointment of “co-counsel.” (ECF No.
32 at 2.) This claim lacks merit because―even in capital cases―criminal defendants do not have
a constitutional right to the appointment of co-counsel.4 See, e.g., Rachal v. Quarterman, 265 F.
App’x 371, 378 (5th Cir. 2008) (“As courts routinely recognize, there is no constitutional right per
se to appointment of co-counsel in a capital case.” (citations omitted)); Riley v. Taylor, 277 F.3d
261, 306 (3d Cir. 2001) (“[T]here is no constitutional right per se to the appointment of co-counsel
in a capital case.” (emphasis added) (citations omitted)); Bell v. Watkins, 692 F.2d 999, 1009 (5th
Cir. 1982) (“Although Mississippi courts may customarily appoint two lawyers in a capital case,
the Constitution dictates no such requirement.”); Jackson v. Carroll, No. Civ. 01‒552‒SLR, 2004
WL 1192650, at *14 n.10 (D. Del. May 20, 2004) (“While it may be Delaware practice to appoint
two attorneys in a capital case, the presence of only one court-appointed attorney does not offend
the Sixth Amendment.” (citations omitted)). See generally Strickland v. Washington, 466 U.S. 668,
686 (1984) (“[The Supreme] Court has recognized that ‘the right to counsel is the right to the
effective assistance of counsel.’” (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970))); Riley, 277 F.3d at 306 (“The Constitution does not specify the number of lawyers who
must be appointed. If a single attorney provides reasonably effective assistance, the Constitution
is satisfied, and if a whole team of lawyers fails to provide such assistance, the Constitution is
violated.”).
The Court notes that, in the context of federal offenses, “[w]hoever is indicted for treason or other capital crime shall
be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge
thereof, shall promptly, upon the defendant’s request, assign 2 such counsel . . . .” 18 U.S.C. § 3005. However, “th[is]
right to two counsel granted by [§] 3005 is purely statutory and . . . [§ 3005] does not embody a fundamental
constitutional right . . . .” United States v. Williams, 544 F.2d 1215, 1218 (4th Cir. 1976) (citation omitted). As such,
Section 3005 does not provide a constitutional right that may sustain Petitioner’s third exhausted claim.
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For these reasons, the Court finds that Petitioner’s unexhausted claims, as included in the
Petition through the amendment, are not meritorious. As these claims lack merit, the Court also
finds that a stay and abeyance of this matter pending Petitioner’s exhaustion of these claims is not
appropriate. See, e.g., Rhines, 544 U.S. at 277 (“[E]ven if a petitioner had good cause . . . , the
district court would abuse its discretion if it were to grant him a stay when his unexhausted claims
are plainly meritless.”). Accordingly, the Court OVERRULES the Objections5 as to the Request
to Stay, (ECF No. 49 at 3‒7), ADOPTS the PF&R, (ECF No. 48), insofar as Magistrate Judge
Eifert recommends that the Court deny the Request to Stay, and DENIES the Request to Stay,
(ECF No. 32 at 4). The Court shall address Petitioner’s available options regarding the
unexhausted claims in the conclusion section of this Opinion.
C.
The Motion for Discovery
Petitioner’s final objection to the PF&R concerns Magistrate Judge Eifert’s denial of
Petitioner’s Motion for Discovery without prejudice. (See ECF No. 49 at 7.) Petitioner does not
object to the Magistrate Judge’s finding that this motion is premature. (See ECF No. 49. See
generally ECF No. 48 at 21‒22 (providing the Magistrate Judge’s analysis and ruling regarding
the Motion for Discovery).) Instead, Petitioner argues that he “should not be required to re-file the
motion like [Magistrate] Judge Eifert . . . suggest[s].” (ECF No. 49 at 7.)
5
To the extent that Petitioner asserts that Martinez v. Ryan, 132 S. Ct. 1309 (2012), has any application to the issues
in this opinion, he is incorrect. Martinez does not provide a § 2254 petitioner a freestanding constitutional right to
the effective assistance of counsel in state collateral post-conviction proceedings. Instead, it carves out a limited
exception to procedural default doctrine, holding that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 1315. In other words, Martinez held only that the ineffectiveness of a petitioner’s state habeas counsel may provide
cause in a federal habeas proceeding to excuse the petitioner’s failure to challenge the ineffectiveness of his trial
counsel during the pendency of the state habeas proceeding. To the extent that Petitioner is asserting that the state
habeus proceeding somehow contained a Martinez error, such a claim is not cognizable in this case for the reasons
explained in this opinion.
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As Magistrate Judge Eifert ruled on this motion, this Court’s standard in reviewing her
ruling is provided by Federal Rule of Civil Procedure 72(a). See, e.g., HSBC Bank USA, Nat’l
Ass’n v. Resh, Civil Action No. 3:12‒cv‒00668, 2014 WL 317820, at *6 (S.D. W. Va. Jan. 28,
2014) (“Federal Rule of Civil Procedure 72(a) . . . governs a district court’s review of a magistrate’s
order regarding a non-dispositive matter.”). Pursuant to Rule 72(a), “[o]nly if a magistrate judge’s
decision is ‘clearly erroneous or contrary to law’ may a district judge modify or set aside any
portion of the decision.” White v. Chapman, No. 1:14cv848(JCC/IDD), 2015 WL 4360329, at *2
(E.D. Va. July 14, 2015) (citing Fed. R. Civ. P. 72(a)). See generally Boothe v. Ballard, Civil
Action No. 2:14-cv-25165, 2016 WL 1275054, at *60‒61 (S.D. W. Va. Mar. 31, 2016) (discussing
the “clearly erroneous” and “contrary to law” standards of review for when a district court reviews
a ruling by a magistrate judge).
The Magistrate Judge found―and Petitioner does not contest―that his Motion for
Discovery is premature because “Respondent has yet to file his answer along with the necessary
transcripts from [Petitioner’s] state court proceedings.” (ECF No. 48 at 22.) As this motion is
premature at the present preliminary stage of these proceedings, the Court finds that it was neither
clearly erroneous nor contrary to law for the Magistrate Judge to deny this motion without
prejudice, rather than permit this motion to remain pending on the docket. Indeed, Petitioner’s
request for discovery may materially change once the record is supplemented with Respondent’s
answer to the Petition and the transcripts from Petitioner’s state proceedings. There is no reason
to leave this premature and potentially moot motion pending on the docket and, as such, the Court
shall not disturb the Magistrate Judge’s decision to deny Petitioner’s Motion for Discovery without
prejudice. As the Magistrate Judge noted, Petitioner “may again move to conduct discovery” after
13
“Respondent has filed his answer and the pertinent transcripts,” as the Court―or the Magistrate
Judge―will then “have the requisite foundation for adjudicating such a motion.” (ECF No. 48 at
22.)
Accordingly, the Court OVERRULES Petitioner’s Objections as to the Magistrate Judge’s
ruling on the Motion for Discovery, (ECF No. 49 at 7), and AFFIRMS the Magistrate Judge’s
ruling denying this motion without prejudice, (ECF No. 48 at 21‒22).
IV. Conclusion
For the foregoing reasons, the Court OVERRULES Petitioner’s Objections, (ECF No. 49),
ADOPTS the PF&R, (ECF No. 48), to the extent it is consistent with this Memorandum Opinion
and Order, DENIES Petitioner’s Motion for Partial Summary Judgment, (ECF No. 25), Motion
for Default Judgment, (ECF No. 42), and Request to Stay, (ECF No. 32 at 4), and AFFIRMS
Magistrate Judge Eifert’s denial of the Motion for Discovery without prejudice, (ECF No. 48 at
21‒22).
As the Petition now includes both exhausted and unexhausted claims and a stay of this
matter pending total exhaustion is not warranted, the Court ORDERS Petitioner to notify the Court
within 30 days of the entry of this Opinion whether he (1) voluntarily withdraws the entire Petition;
or (2) withdraws the unexhausted claims discussed herein―as included in the Petition through the
amendment, (see ECF No. 32 at 2 (providing the three unexhausted claims))―and waives the
Court’s review of these unexhausted claims.6 If Petitioner fails to provide the requisite notice to
the Court within the proscribed timeframe, the Court may dismiss the Petition without prejudice.
6
In the Objections, Petitioner expresses an intent to withdraw the unexhausted claims if the Court finds that a stay of
this action pending total exhaustion is not appropriate. (ECF No. 49 at 6.) While this statement reflects an intent on
the part of Petitioner, it does not provide an explicit statement that Petitioner does, in fact, withdraw the unexhausted
claims. (See id.) As such, the Court requires notice from Petitioner as to whether he withdraws the unexhausted claims,
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IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Opinion to counsel of record and
any unrepresented party.
ENTER:
or the Petition, in its entirety.
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September 23, 2016
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