Meade v. Ballard

Filing 21

MEMORANDUM OPINION AND ORDER adopting the 15 Proposed Findings and Recommendation by Magistrate Judge; denying the petitioner's 1 Motion and 5 Amended Motion to Proceed with § 2254 Petition Due to Inordinate Unjustifiable Delay; gr anting the 19 Motion to provide supplemental arguments/information in support of his 16 objections; the 4 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is dismissed without prejudice so that petitioner can exhaust his state court remedies; denying as moot petitioner's remaining 6 , 8 , 9 motions; and this action is stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 8/29/2017. (cc: pro se petitioner; counsel of record; United States Magistrate Judge Cheryl A. Eifert) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

GLEN R. MEADE,
Petitioner,
v.

CIVIL ACTION NO. 2:16-cv-11303

DAVID BALLARD, Warden,
Mt. Olive Correctional Complex,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are the following: Motion by
Glen R. Meade to Proceed with § 2254 Petition Due to Inordinate
Unjustifiable Delay (ECF No. 1); Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4); Amended Motion
to Proceed with § 2254 Petition Due to Inordinate Unjustifiable
Delay (ECF No. 5); Motion for the Appointment of Counsel (ECF
No. 6); Motion to Proceed In Forma Pauperis (ECF No. 8);
Application to Proceed Without Prepayment of Fees and Costs (ECF
No. 9); and

Motion to Provide Supplemental

Arguments/Information in Support of his Objections (ECF No. 19).

This action was previously referred to Cheryl A.
Eifert, United States Magistrate Judge, who, on March 2, 2017,
submitted her Proposed Findings and Recommendations (“PF&R”)
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).

On

March 8, 2017, petitioner filed objections to the PF&R, followed
by an unopposed motion on March 13 to provide additional
objections (ECF No. 19), which motion is granted.

Respondent

sent in a Response, to which petitioner replied.
The magistrate judge recommends that the inordinate
delay motions in ECF No. 1 and 5 be denied, the petition for
writ of habeas corpus be dismissed without prejudice so that
Meade can exhaust his state court remedies, his remaining
motions be denied as moot, and the action be removed from this
court’s docket.

Petitioner’s objections center on the alleged

failings of his counsel in his state court habeas action, Jim
Pajarillo. Petitioner also takes issue with the attribution of
fault to him for a two-month portion of the delay because he
believes it is due to Mr. Pajarillo.

Otherwise, he appears to

concede that his various actions contributed to the duration of
the process.

Taken in the light most favorable to petitioner,

2

his contribution to the delay is consistent with the PF&R’s
analysis and conclusion.

Further, the objections draw repeated attention to the
difficulties of petitioner’s position because of his age and
health status.

The objections contain essentially the same

legal arguments presented to, and correctly and thoroughly
resolved by, the magistrate judge within the PF&R.

Importantly,

the determination of whether it is permissible to waive the
requirement that Meade exhaust his state court remedies before
proceeding with a habeas petition in federal court does not
directly implicate an evaluation of the performance of Mr.
Pajarillo or his other counsel.

As explained in the PF&R, the

Circuit Court of Mingo County, West Virginia is reviewing
petitioner’s claims, and the facts on the record do not suggest
that there is any “inordinate delay or inaction in state
proceedings” to amount to a violation of petitioner’s due
process rights (PF&R, ECF No. 15, at 8-9, citations omitted).
None of this is to suggest that the court is not sympathetic
with petitioner’s concerns about his age, health, and timing of
the legal process, although petitioner’s own tactics have
brought about most of the delay.
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The court also notes that the objections unfortunately
mischaracterize the PF&R as endorsing Mr. Pajarillo’s actions
and inaccurately claim that the PF&R is based on some sort of
disapproval of petitioner’s disagreements with his counsel and
the state court judge.

In fact, the legal conclusions contained

in the PF&R are compelled by a straightforward application of
the governing statutory and case law, which in turn reflects the
important role of the exhaustion requirement in habeas actions
under 28 U.S.C. § 2254.

The court, accordingly, ORDERS as follows:
1.

The PF&R be, and it hereby is, adopted by the court
and incorporated herein;

2.

The two inordinate delay motions be, and they hereby
are, denied;

3.

The motion to provide supplemental
arguments/information in support of his objections be,
and it hereby is, granted;

4.

The section 2254 petition be, and it hereby is,
dismissed without prejudice so that petitioner can
4

THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
Defendants.
ORDER AND NOTICE
exhaust his state court remedies;
Pursuant to remaining motions it is ORDERED that and
5.
Petitioner’s L.R. Civ. P. 16.1, be denied, as moot; the
following dates are hereby fixed as the time by or on which
certain events actionoccur:
6.
This must be, and it hereby is, stricken from the
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
docket.
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
Pursuant to Federal Rule of Appellate Procedure 4(a)
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
(1)(A), petitioner must for Rule 26(f) meeting. 30 days after
02/08/2016
Last day file any appeal within
02/15/2016
Last day to file Report The failure within
entry of the Judgment in this action. of Parties= Planningthat
Meeting. See L.R. Civ. P. 16.1.
period to file with the Clerk of this court a notice of appeal
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
of the Judgment will render this memorandum opinion and order
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
and the Judgment final and appear.
directed to unappealable.
02/29/2016
Entry of scheduling order.
The Clerk is directed to forward copies of this
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
written opinion and order to the pro se petitioner, all counsel
The Clerk is requested to transmit this Order and
of record, all counsel States Magistrate any unrepresented
Notice to and United of record and to Judge Cheryl A. Eifert.
parties.

DATED: August 29, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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