Elswick v. Plumley

Filing 19

ORDER DENYING without prejudice Petitioner's 4 PETITION FOR WRIT OF HABEAS CORPUS pursuant to Title 28, United States Code, Section 2254; DENYING without prejudice Respondent's 9 MOTION to Dismiss 4 Petition for Writ of Habeas Corpus (2254) for Failure to Exhaust and Timeliness; directing that Petitioner's habeas petition be STAYED and HELD IN ABEYANCE for 30 days from entry of this Order so that Petitioner can pursue his unexhausted claims in state court, and directing Peti tioner to return to federal court within 30 days of exhausting his state court remedies to seek the lift of the stay; Ground 13 of Petitioner's Petition for Writ of Habeas Corpus is STRICKEN, and Petitioner's 12 MOTION for Entry of Default Judgment by the Court against Marvin Plumley is DENIED and DISMISSED. Signed by Judge Joseph R. Goodwin on 6/1/2015. (cc: Magistrate Judge Eifert, counsel of record; pro se Plaintiff; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

RAYMOND ELSWICK,
Petitioner,
v.

CIVIL ACTION NO. 2:14-cv-29300

MARVIN PLUMLEY,
Respondent.

ORDER
Pending before this court are Petitioner Raymond Elswick’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 [Docket 4]; Motion for Default Judgment [Docket 12]; and
Motion to Hold 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in Abeyance, or in the
alternative, to Dismiss Without Prejudice [Docket 15]. Also pending is Respondent’s Motion to
Dismiss Petition for Failure to Exhaust and Timeliness [Docket 9]. The petition and motions
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). On May 1, 2015, the Magistrate Judge submitted proposed
findings of fact and recommended this court to rule as follows:
1. DENY without prejudice Elswick’s Petition for Writ of Habeas Corpus [Docket 4] on the
basis that Elswick failed to exhaust his state court remedies as to some of his claims;
2. DENY without prejudice Respondent’s Motion to Dismiss [Docket 9];

3. GRANT Elswick’s Motion to Hold 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus
in Abeyance, or in the alternative, to Dismiss Without Prejudice [Docket 15], to the
extent that it seeks a stay of proceedings;
4. GRANT a STAY to Elswick to pursue his state court remedies for his unexhausted
claims on the condition that Elswick pursue his state court remedies within thirty days of
entry of this Order;
5. Hold Elswick’s habeas petition in ABEYANCE, pending exhaustion of state court
remedies, and require Elswick to return to federal court within thirty days of exhausting
those remedies to seek a lift of the stay;
6. STRIKE Ground 13 of Elswick’s Petition for Writ of Habeas Corpus [Docket 4]; and
7. DENY and DISMISS without prejudice Elswick’s Motion for Entry of Default Judgment
[Docket 12].
Neither party has filed objections to the Magistrate Judge’s findings and
recommendations. A district court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
§ 636(b)(1)(C). The court is not, however, 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). As the parties have not filed objections in this case, the court ADOPTS and
INCORPORATES herein the findings and recommendation of the Magistrate Judge and
ORDERS judgment consistent with the findings and recommendation.

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Accordingly, Elswick’s Petition for Writ of Habeas Corpus [Docket 4] and Respondent’s
Motion to Dismiss [Docket 9] are DENIED without prejudice. I ORDER that Elswick’s
habeas petition be STAYED and HELD IN ABEYANCE for thirty days from entry of this
Order so that Elswick can pursue his unexhausted claims in state court, and I DIRECT Elswick
to return to federal court within thirty days of exhausting his state court remedies to seek a lift of
the stay. Furthermore, Ground 13 of Elswick’s Petition for Writ of Habeas Corpus is
STRICKEN, and Elswick’s Motion for Entry of Default Judgment [Docket 12] is DENIED and
DISMISSED.
The court DIRECTS the Clerk to send a copy of this Order to Magistrate Judge Eifert,
counsel of record, and any unrepresented party.

ENTER:

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June 1, 2015