Hatfield v. Parsons

Filing 13

STIPULATION AND ORDER. Based upon this stipulation, all further actions in this federal habeas corpus action are stayed pending final action by the West Virginia Supreme Court. Signed by Magistrate Judge Maurice G. Taylor, Jr. on 5/29/2009. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA STEPHEN WESTLEY HATFIELD, Petitioner, v. LARRY PARSONS, Administrator of the Western Regional Jail, Respondent. STIPULATION AND ORDER Currently pending before the Court is the Motion for Summary Judgment filed by Respondent Larry Parsons. Counsel for Petitioner Stephen Westley Hatfield recently discovered that the hospital, medical, and psychological records, which were made a part of the record in the underlying state habeas corpus action, were not included in the record before the West Virginia Supreme Court when it decided Hatfield v. Painter, 222 W.Va. 622, 671 S.E.2d 453 (2008). According to Petitioner's counsel, these records, which should have been included because the designation of the record for the appeal asked that all records in the underlying habeas corpus case be included, had not been made a part of the state court record in either State v. Hatfield, 186 W.Va. 507, 413 S.E.2d 162 (1991), or in State v. Hatfield, 206 W.Va. 125, 522 S.E.2d 416 (1999). In an effort to address this omission in the record, Petitioner plans to file a petition for rehear ing, out of time, with the West Virginia Supreme Court, to permit that Court to rehear the appeal of his state habeas corpus action, in light of the full record, and to exhaust all of his rights in state court. Rather than filing additional enlargements of time for Petitioner to respond to the pending motion for summary judgment, Petitioner and Respondent have agreed to stay all further proceedings Docket No. 3: 09-0119

in this pending federal habeas corpus action to allow Petitioner the opportunity to file a petition for rehear ing, out of time, with the West Virginia Supreme Court, and to allow the West Virginia Supreme Court to resolve that petition. Once there has been a final resolution of Petitioner's rehearing petition, counsel for Petitioner is ordered to notify this Court of the final action taken by the West Virginia Supreme Court. Based upon this stipulation, all further actions in this federal habeas corpus action are stayed pending the final action by the West Virginia Supreme Court. IT IS SO ORDERED this 29th day of May, 2009.

______________________________ Mau ce TAYLOR, MAURICEriG. G. Taylor, Jr. JR. Un STATES MAGISTRATE UNITED it ed States Magistrate Judge JUDGE Approved by:

/s/ Lonnie C. Simmons Lonnie C. Simmons (W.Va.I.D. No. 3406) DITRAPANO, BARRETT & DIPIERO, PLLC 604 Virginia Street, East Charleston, West Virginia 25301 [phone]

/s/ Barbara H. Allen Barbara H. Allen (W.Va.I.D. No. 1220) Managing Deputy Attorney General Office of the Attorney General State Capitol Complex, Building 1, Room E-26 Charleston, West Virginia 25305-0220 [phone]

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