Lind v. Ballard
MEMORANDUM OPINION AND ORDER adopting the 83 Proposed Findings and Recommendation by Magistrate Judge; granting petitioner's 78 Motion to Stay; STAYS this case to allow petitioner to pursue state court remedies for his unexhausted cl aims, and HOLDS IN ABEYANCE petitioner's amended habeas petition pending exhaustion of state court remedies; this case is REMOVED from the active docket of this Court; the Court further ORDERS that petitioner return to this Court within 30 da ys after exhausting his state court remedies to request that the stay be lifted; denying as moot 65 Motion to Proceed on Appeal without Prepayment of Fees. Signed by Judge Thomas E. Johnston on 11/17/2017. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
JONATHAN JOSEPH LIND,
CIVIL ACTION NO. 2:14-cv-26284
MEMORANDUM OPINION AND ORDER
Before the Court are Petitioner’s motion for leave to amend his petition and motion to stay,
(ECF No. 78), and Respondent’s motion to deny Petitioner’s attempt to amend the petition, (ECF
No. 72).1 Petitioner, an inmate at Mount Olive Correctional Complex, initiated this action by
filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Because
Petitioner proceeds pro se, this action has been referred to United States Magistrate Judge Cheryl
A. Eifert for submission of proposed findings of fact and recommendations for disposition
(“PF&R”). On October 23, 2017, Magistrate Judge Eifert entered a PF&R finding that Petitioner
is entitled to a stay while he exhausts his state remedies and recommending that the Court grant
Also pending is Petitioner’s Motion to Proceed on Appeal without Prepayment of Fees. (ECF No. 65.) Petitioner’s
appeal was dismissed by the Fourth Circuit seventeen days after the motion’s filing upon Petitioner’s motion to
voluntarily dismiss the appellate case. Thus, the Court DENIES AS MOOT the motion related to that previous
his motion to stay and hold the habeas petition in abeyance pending exhaustion of state court
remedies.2 (ECF No. 83.)
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 recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and Petitioner’s right to appeal this
Court’s order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). 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).
Objections to the PF&R in this case were due on November 9, 2017. To date, no
objections have been filed.
Accordingly, the Court ADOPTS the PF&R, (ECF No. 83), GRANTS Petitioner’s motion
to stay, (ECF No. 78), STAYS this case to allow Petitioner to pursue state court remedies for his
unexhausted claims, and HOLDS IN ABEYANCE Petitioner’s amended habeas petition pending
exhaustion of state court remedies. This case is REMOVED from the active docket of this Court.
The Court further ORDERS that Petitioner return to this Court within thirty days after exhausting
his state court remedies to request that the stay be lifted.
IT IS SO ORDERED.
In the PF&R, Magistrate Judge Eifert granted Petitioner’s motion for leave to amend his petition, (ECF No. 78), and
denied Respondent’s motion to deny Petitioner’s attempt to amend, (ECF No. 72). As such, Petitioner’s previously
filed amended petition, (ECF No. 63), stands as the amended petition in this case.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
November 17, 2017
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