Clement v. Ballard
Filing
13
MEMORANDUM OPINION AND ORDER adopting the 12 Proposed Findings and Recommendation; denying without prejudice petitioner's 2 request for habeas corpus relief; granting defendant's 10 Motion to Dismiss, or in the alternative Motion for Stay and Abeyance, insofar as it requests stay and abeyance, STAYS this case to allow petitioner to pursue state court remedies for his unexhausted claims; and holds in abeyance petitioner's 2 habeas petition pending exhaustion of state c ourt remedies; directing that the stay be conditioned upon petitioner pursuing his state court remedies within 30 days of the entry of this Order; petitioner to return to this Court no less than 30 days after exhausting his state court remedies to request that the stay be lifted. Signed by Judge Thomas E. Johnston on 11/2/2015. (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
LARRY CLEMENT,
Petitioner,
v.
CIVIL ACTION NO. 2:15-cv-02320
DAVID BALLARD,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Petitioner’s Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254, (ECF No. 2), and Defendant’s Motion to Dismiss, or in the alternative Motion
for Stay and Abeyance, (ECF No. 10). By Standing Order entered on May 7, 2014, and filed in
this case on March 18, 2015, this action was referred to United States Magistrate Judge Cheryl A.
Eifert for submission of proposed findings and a recommendation for disposition (“PF&R”).
(ECF No. 4.) Magistrate Judge Eifert filed her PF&R on September 22, 2015, recommending that
this Court grant Defendant’s motion insofar as it requests stay and abeyance, deny without
prejudice Petitioner’s request for habeas corpus relief, grant Petitioner a stay to pursue state court
remedies, and hold Petitioner’s habeas petition in abeyance pending exhaustion of state court
remedies. (ECF No. 12 at 2.)
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 the Plaintiff’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 October 9, 2015. To date, no objections
have been filed.
Accordingly the Court ADOPTS the PF&R, (ECF No. 12), DENIES WITHOUT
PREJUDICE Petitioner’s request for habeas corpus relief, (ECF No. 2), GRANTS Defendant’s
Motion to Dismiss, or in the alternative Motion for Stay and Abeyance, (ECF No. 10), insofar as
it requests stay and abeyance, STAYS this case to allow Petitioner to pursue state court remedies
for his unexhausted claims, and HOLDS IN ABEYANCE Petitioner’s habeas petition pending
exhaustion of state court remedies. The Court ORDERS that the stay be conditioned upon
Petitioner pursuing his state court remedies within thirty days of the entry of this Order. The
Court further ORDERS that Petitioner return to this Court no less than thirty days after exhausting
his state court remedies to request that the stay be lifted.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
November 2, 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?