Lewis v. Ballard et al
Filing
32
MEMORANDUM OPINION AND ORDER adopting and incorporating the 29 Proposed Findings and Recommendation by Magistrate Judge; granting the respondent's 18 Motion to Dismiss Petition for Failure to Exhaust State Remedies; denying the petitioner 's 23 Motion for Leave to Hold the § 2254 Writ of Habeas Corpus in Abeyance; and denying as moot the respondents' 16 Motion to Dismiss an Improperly-Named Party and Correct Case Caption; the petitioner's 2 Petition for Writ of Habeas Corpus is DISMISSED without prejudice. Signed by Judge Joseph R. Goodwin on 3/8/2017. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ROBERT LEE LEWIS,
Petitioner,
v.
CIVIL ACTION NO. 2:16-cv-03194
DAVID BALLARD, et al,
Respondents.
MEMORANDUM OPINION AND ORDER
Pending before the court are the petitioner’s Petition for Writ of Habeas Corpus
[ECF No. 2], the respondents’ Motion to Dismiss an Improperly-Named Party and
Correct Case Caption [ECF No. 16], the respondents’ Motion to Dismiss Petition for
Failure to Exhaust State Remedies [ECF No. 18], and the petitioner’s Motion for
Leave to Hold the § 2254 Writ of Habeas Corpus in Abeyance [ECF No. 23]. This
action was referred to United States Magistrate Judge Omar J. Aboulhosn for
submission to this court of proposed findings of fact and recommendation for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Aboulhosn submitted his
Proposed Findings of Fact and Recommendation [ECF No. 29] regarding the three
pending motions. The petitioner timely filed his Objections [ECF No. 30]. The
respondent did not timely file objections.
Having reviewed the petitioner’s objections de novo, the court FINDS that they
are without merit. Accordingly, the court ADOPTS and INCORPORATES herein the
Magistrate Judge’s report as to his recommendation that the court grant the
respondents’ Motion to Dismiss and deny the petitioner’s Motion for Abeyance. As the
court is adopting the recommendation to grant the Motion to Dismiss, the court
considers moot the respondents’ Motion to Dismiss an Improperly-Named Person,
and thus the court varies from the Magistrate Judge’s recommendation to grant the
motion regarding petitioner’s naming of the Attorney General.
Accordingly, the court ORDERS that the respondents’ Motion to Dismiss
Petition for Failure to Exhaust State Remedies [ECF No. 18] is GRANTED, the
petitioner’s Motion for Leave to Hold the § 2254 Writ of Habeas Corpus in Abeyance
[ECF No. 23] is DENIED, and the respondents’ Motion to Dismiss an ImproperlyNamed Party and Correct Case Caption [ECF No. 16] is DENIED as moot. The court
further ORDERS that the petitioner’s Petition for Writ of Habeas Corpus [ECF No.
2] is DISMISSED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
2
March 8, 2017
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