Plymail v. Mirandy

Filing 74

MEMORANDUM OPINION AND ORDER accepting Petitioner's 70 Objections as specified herein; rejecting the Magistrate Judge's 66 Proposed Findings and Recommendation; denying Respondent's 58 Second Motion to Dismiss for Failure to Exha ust; excusing Petitioner from the exhaustion requirement of Section 2254; and referring Petitioner's 1 Petition back to the Magistrate Judge for further proceedings consistent with this Memorandum Opinion and Order. Signed by Judge Robert C. Chambers on 9/27/2017. (cc: Magistrate Judge Aboulhosn; counsel of record; any unrepresented parties) (jsa)

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

CHARLES F. PLYMAIL,
Petitioner,
v.

CIVIL ACTION NO. 3:14-6201

PATRICK A. MIRANDY,
Warden, St. Mary’s Correctional Center,
Respondent.

MEMORANDUM OPINION AND ORDER
This action, brought pro se, was referred to a United States Magistrate Judge for proposed
findings of fact and recommendation for disposition (“PF&R”) pursuant to 28 U.S.C. §
636(b)(1)(B). Now pending before the Court is Respondent’s Second Motion to Dismiss for
Failure to Exhaust (ECF No. 58). The Magistrate Judge recommends that Respondent’s Second
Motion to Dismiss for Failure to Exhaust (ECF No. 58) be granted and that Petitioner’s Petition
under 28 U.S.C. § 2254 (ECF No. 1) be dismissed without prejudice (ECF No. 66). Petitioner filed
objections to the PF&R on June 30, 2017 (ECF No. 70). For the reasons set forth below, the Court
accepts Petitioner’s objections as specified and rejects the Magistrate Judge’s findings and
recommendations to the extent that they conflict with the following Memorandum Opinion and
Order.

I.

Introduction

On January 31, 2014, Petitioner Charles F. Plymail filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 with this Court (ECF No. 1). In his Petition, Petitioner alleges
the following grounds for habeas relief:
1. The State’s 19-year delay in affording [Petitioner] an appeal of [his] criminal
conviction violates the due process provisions of the Fourteenth Amendment to
the United States Constitution.
2. Because the jurors at [Petitioner’s] trial were subjected to judicial coercion,
[his] conviction was obtained in violation of the due process provisions of the
Fourteenth Amendment of the United States Constitution.
3. The plainly improper remarks made by the prosecutor during the State’s
rebuttal closing were prejudicial enough to have denied [Petitioner’s] right to
a fair trial and, thus, violated the due process provisions of the Fourteenth
Amendment to the United States Constitution.
4. Because [Petitioner’s] waiver of the right to testify was based on misleading
statements made by court and counsel, [Petitioner’s] conviction was obtained
in violation of the due process provisions of the Fourteenth Amendment to the
United States Constitution.
5. Because the trial court lacked jurisdiction to enhance [Petitioner’s] sentence
under West Virginia’s recidivist statute, its imposition of a life sentence
violated the due process provisions of the Fourteenth Amendment to the
United States Constitution.
6. Because [Petitioner] was not provided with effective assistance of counsel, [his]
conviction was obtained in violation of the Sixth Amendment to the United
States Constitution.
(ECF No. 1).
a.

Procedural History

Petitioner’s case was referred to Magistrate Judge VanDervort for findings of fact and
recommendation for disposition on February 26, 2014 (ECF No. 4). After supplemental and
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responsive pleadings were filed by Petitioner and Respondent, Respondent filed a Motion to
Dismiss and Incorporated Memorandum on March 25, 2015 (ECF No. 14). Petitioner responded
to the Motion on April 9, 2015 (ECF Nos. 18 and 19), and Respondent replied on April 10, 2015
(ECF No. 20). On December 21, 2015, Magistrate Judge VanDervort entered a PF&R in which he
recommended that Petitioner’s Petition be dismissed without prejudice for failure to exhaust (ECF
No. 31). Petitioner filed objections to the PF&R on January 11, 2016 (ECF No. 36).
By Memorandum Opinion and Order entered on March 30, 2016, this Court adopted
Magistrate Judge VanDervort’s recommendation and dismissed Petitioner’s Petition without
prejudice (ECF Nos. 38 and 39). Petitioner appealed (ECF No. 42). By per curiam opinion entered
on November 23, 2016, the United States Court of Appeals for the Fourth Circuit found that the
District Court had “prematurely dismissed [Petitioner’s] petition for failure to exhaust his state
remedies,” and, accordingly, vacated the District Court’s judgment and remanded the case to the
District Court for further proceedings (ECF No. 50).
On remand, this case was referred to Magistrate Judge Aboulhosn by Order entered
December 19, 2016 (ECF No. 54). On December 21, 2016, Magistrate Judge Aboulhosn directed
Respondent to file a supplemental response to Petitioner’s Petition and to include records “that
would facilitate a determination of [Petitioner’s claim that he is excused from the exhaustion
requirement because there is an absence of available state corrective process or circumstances exist
that render such process ineffective to protect the rights of Petitioner]” (ECF No. 55).
Pursuant to Magistrate Judge Aboulhosn’s Order, Respondent filed his Answer, a Second
Motion to Dismiss for Failure to Exhaust, and a Memorandum of Law in Support on February 2,
2017 (ECF Nos. 57, 58, 59). Petitioner responded on March 17, 2017 (ECF No. 65).

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After consideration of the above, Magistrate Judge Aboulhosn entered the present PF&R
on May 23, 2017 (ECF No. 66). Pursuant to his proposed findings, Magistrate Judge Aboulhosn
recommends that the District Court grant Respondent’s Second Motion to Dismiss for Failure to
Exhaust (ECF No. 58) and dismiss Petitioner’s Petition (ECF No. 1) without prejudice (ECF No.
66). Petitioner filed objections to the PF&R on June 30, 2017 (ECF No. 70). For reasons specified
herein, the District Court rejects the Magistrate Judge’s proposed findings as specified and declines
to accept the Magistrate Judge’s recommendations for disposition.
b. Exhaustion of Petitioner’s First Five Section 2254 Claims
At the time Petitioner filed the present Section 2254 Petition for Writ of Habeas Corpus
with this Court in January 2014 (ECF No. 1), Petitioner’s direct appeal of his criminal case (West
Virginia State Court Case No. 93-F-50) was still pending in the West Virginia state court system
(see ECF. No. 58-78). In that appeal, Petitioner presented the first five claims now before this
Court to the West Virginia Supreme Court (see ECF Nos. 58-60, 1), thereby giving the highest
court in the state the opportunity to consider Petitioner’s constitutional claims.
The Supreme Court of West Virginia decided Petitioner’s direct appeal on November 20,
2015 (ECF No. 58-78). As Respondent concedes, the Supreme Court’s decision rendered
Petitioner’s first five claims now before this Court exhausted (ECF No. 59). As such, the Court
will focus exclusively on Petitioner’s remaining claim of ineffective assistance of counsel.
c. Petitioner’s Unexhausted Claim of Ineffective Assistance of Counsel
Though Respondent concedes that Petitioner has exhausted his first five claims,
Respondent nonetheless asks this Court to grant his Second Motion Dismiss for Failure to Exhaust
based on Petitioner’s failure to exhaust his sixth claim of ineffective assistance of counsel (ECF
No. 59). In his Section 2254 Petition, Petitioner alleges: “Because [Petitioner] was not provided

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with effective assistance of counsel, [his] conviction was obtained in violation of the Sixth
Amendment to the United States Constitution” (ECF No. 1 at 23). This claim was not presented to
the West Virginia Supreme Court in Petitioner’s direct appeal (see ECF Nos. 58-60, 58-76), but
Petitioner did assert this claim in his Petition for Writ of Habeas Corpus that he filed in Cabell
County Circuit Court on March 13, 2013 (ECF No. 58-21). Petitioner’s state habeas case currently
remains pending (see ECF No. 72).
Respondent contends, “Petitioner’s State habeas proceedings are ongoing. Once Petitioner
has properly adjudicated his claims of ineffective assistance of counsel in his State habeas
proceedings, [his Section 2254 Petition] will be ripe for consideration by this Court” (ECF No. 58
at 2). Petitioner concedes that he has not exhausted his ineffective assistance of counsel claim in
state court, but argues that there has been an inordinate delay in his state court proceedings such
that the state corrective process has been rendered ineffective and exhaustion should be excused
(ECF No. 70 at 16).
II.

Magistrate Judge’s Proposed Findings and Recommendations

On May 23, 2017, Magistrate Judge Aboulhosn submitted the present PF&R (ECF No. 66).
After reviewing the procedural history of Petitioner’s direct appeal, state habeas case, and Section
2254 Petition, Magistrate Judge Aboulhosn analyzed whether Petitioner’s failure to exhaust should
be excused (ECF No. 66 at 25–37). In doing so, Magistrate Judge Aboulhosn reviewed the history
of Petitioner’s state cases in light of four factors: length of delay, reason for delay, assertion of
rights, and prejudice (ECF No. 66 at 25–37). He concluded that “the alleged delay in Petitioner’s
State habeas proceedings are not the magnitude of delay that has been determined to be inordinate
or a violation of due process;” that “a significant portion of any delay in Petitioner’s State habeas
proceedings is attributable to Petitioner’s continued dissatisfaction with appointed counsel;” that

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Petitioner diligently asserted his rights; and that there is no indication that Petitioner has suffered
prejudice as a result of the alleged delay in state court proceedings (ECF No. 66 at 25–37).
Pursuant to those proposed findings, Magistrate Judge Aboulhosn concluded that the
balancing factors weighed against Petitioner and that exhaustion should not be excused (ECF No.
66 at 37). As a result, he recommends that the Court grant Respondent’s Second Motion to Dismiss
for Failure to Exhaust and dismiss Petitioner’s Petition without prejudice (ECF No. 66 at 40).
III.

Petitioner’s Objections to PF&R

On June 30, 2017, Petitioner filed the following five objections to the present PF&R:
A. The factual statement (i.e., “Procedural History”), which is used to justify a
recommendation of dismissal, is inaccurate and misleading.
B. Though the PF&R correctly identifies the appropriate standards for reviewing
a motion to dismiss, . . . it fails to abide by those standards.
C. The PF&R applies an inappropriate standard to determine whether the
Petitioner’s failure to exhaust state remedies should be excused due to
inordinate delay in the state corrective process.
D. In applying the speedy trial analysis set forth in Barker v. Wingo . . . the PF&R
continues to overlook undisputed and manifestly relevant facts, to rely upon
factual misstatements and false assumptions, and to misinterpret and/or
misapply case law. Consequently, the PF&R reaches an incorrect finding with
regard to each of the four Barker factors.
E. The PF&R inappropriately excuses the State from its obligation to provide
timely appellate review.
(ECF No. 70).
The Court accepts Petitioner’s Objections A, B, and C to the extent specified herein
and disposes of Objections D and E as noted below.
IV.

Standard of Review of PF&R

This Court conducts a de novo review of those portions of the Magistrate Judge’s proposed
findings and recommendations to which a party objects. 28 U.S.C. § 636(b)(1)(C) (“A judge of
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the court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate.”). The
Court, however, is not required to review the factual or legal conclusions of the Magistrate Judge
to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
V.

Discussion

a. Petitioner’s Objections A and B: Inaccuracies of PF&R’s Procedural
History and Standard of Review for Motion to Dismiss
The Court accepts Petitioner’s Objection B that, although the PF&R correctly identifies the
appropriate standard for reviewing a motion to dismiss, it fails to abide by that standard in its
consideration of Respondent’s Second Motion to Dismiss for Failure to Exhaust. The Court finds
that this failure to properly apply the standard of review resulted in certain omissions and
inaccuracies in the PF&R’s Procedural History. To the extent that the PF&R’s Procedural History
was flawed by the inappropriate application of the deferential standard of review required for
motions to dismiss, the Court also accepts Petitioner’s Objection A. The Court finds that, by
properly applying the prescribed standard of review to the facts, the deficiencies in the PF&R’s
Procedural History to which Petitioner objects are cured.
i. Applicable Standard
As the PF&R correctly states, a federal court must evaluate a motion to dismiss a Section
2254 petition “under the standards governing motions to dismiss made pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure.” Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006).
Accordingly, the Court is required to “assume all facts pleaded by [Petitioner] to be true.” Rouse
v. Lee, 339 F.3d 238, 247 n. 8 (4th Cir. 2003). The Fourth Circuit has supplemented this standard

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by providing that “the adequacy of a Section 2254 petition [should] be judged on the face of the
petition and any attached exhibits.” Wolfe v. Johnson, 565 F.3d 140, 169 (4th Cir. 2009) (internal
quotations omitted).
ii. State Habeas Case Timeline
In accordance with this standard, reading all facts in a light most favorable to Petitioner,
the Court finds the following to be true of Petitioner’s ongoing state habeas case.
1. Outset of Case
On March 13, 2013, Petitioner filed a Petition for Writ of Habeas Corpus (case number 13C-159) in Cabell County Circuit Court (ECF No. 58-21). The case was assigned to Judge Alfred
Ferguson (ECF No. 72). At the time of this filing, Petitioner’s direct appeal of his criminal
conviction was still pending in state court (ECF No. 58-78). On April 3, 2013, Petitioner wrote a
letter to the Cabell County Circuit Court Clerk requesting the case number and judge assignment
for his state habeas petition (ECF No. 58-23). The docket report indicates that a docket sheet was
sent to Petitioner upon receipt of this request (ECF No. 72).
Nearly nine months later, on December 2, 2013, Stacy Adkins, Judge Ferguson’s law clerk,
wrote a letter to Petitioner in which she noted that Petitioner’s direct appeal was still pending and
asked Petitioner whether he wanted to proceed in his habeas case during the direct appeal’s
pendency (ECF No. 58-31). Petitioner responded promptly, informing Ms. Adkins that he did not
want his habeas case to be held in abeyance and that he wished to have counsel appointed to him
for the habeas proceedings (ECF No. 58-35). Petitioner’s responsive letter was filed on December
13, 2013 (ECF No. 58-77). On the same day, Judge Ferguson entered an Order appointing Sarah
Dixon as counsel for Petitioner and directing that an amended petition be filed no later than May
1, 2014 (ECF No. 58-36).

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2. Ms. Dixon’s Representation
According to Petitioner, Ms. Dixon did not contact him until two months after her
appointment (ECF No. 65 at 20). While she presumably contacted him thereafter, on May 1, 2014,
Ms. Dixon missed the court’s deadline to file an amended petition on Petitioner’s behalf (ECF No.
58-77). On May 2, 2014, Judge Ferguson entered an Order appointing Petitioner’s appellate
counsel Steven Cook to serve as co-counsel in Petitioner’s state habeas case1 and extending the
deadline for Petitioner to file an amended petition “to a date to be determined by the court” (ECF
No. 58-48). The court did not set a new deadline for the amended petition until more than two
years later (see ECF Nos. 72, 72-4).
According to Petitioner, in the summer following Mr. Cook’s appointment as co-counsel,
Petitioner requested that Ms. Dixon seek an evidentiary hearing (ECF No. 65 at 20). In response,
Ms. Dixon “flatly refus[ed]” to take action in Petitioner’s state habeas case until after Petitioner’s
direct appeal had been resolved (ECF No. 65 at 20). At some point between August 2014 and
October 2014, Ms. Dixon accepted employment in the Cabell County Prosecutor’s Office and
moved to withdraw as counsel in Petitioner’s state habeas case (ECF Nos. 58-58, 65 at 20, 72-7 at
2). Judge Ferguson granted Ms. Dixon’s motion by Order entered October 17, 2014 (ECF No. 5858). In the same Order, Judge Ferguson appointed Abraham Saad to replace Ms. Dixon as counsel
for Petitioner (ECF No. 58-58). The clerk of court was directed to provide a certified copy of the
Order to Ms. Dixon, Mr. Saad, Mr. Cook, and the Cabell County Prosecutor (ECF No. 58-58).
3. Mr. Cook’s Representation
In the months that followed Ms. Dixon’s withdrawal, Petitioner and Mr. Cook’s
professional relationship declined as a result of Petitioner’s disapproval of the work Mr. Cook

Judge Ferguson appointed Mr. Cook to serve as appellate counsel in Petitioner’s direct appeal on June 3, 2014 (ECF
No. 58-50).
1

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submitted on Petitioner’s behalf in Petitioner’s direct appeal (ECF No. 65 at 21). On February 4,
2015, Petitioner wrote a letter to Mr. Cook in which he complained of perceived deficiencies in
Mr. Cook’s work on Petitioner’s direct appeal and accused Mr. Cook of incompetence (ECF No.
58-71). In the letter, Petitioner wrote, “I hereby waive my right to any further assistance from you
or your kind. I wish to proceed without counsel for the remainder of this case” (ECF No. 58-71).
Petitioner filed this letter in the docket of his direct appeal (Appeal No. 14-0016) on February 6,
2015 (ECF No. 58-70). There was no mention of Petitioner’s pending state habeas case in the letter
(see ECF No. 58-71), and Petitioner did not file the letter or any similar waiver of counsel in his
state habeas case (Case No. 93-F-50) (see ECF No. 72). Pursuant to Petitioner’s letter, Mr. Cook
moved to withdraw from representation in Petitioner’s direct appeal in February 2015 (ECF No.
58-72) and the West Virginia Supreme Court granted the motion later that month (ECF No. 5873). Neither Mr. Cook’s motion nor the West Virginia Supreme Court’s Order granting the motion
made any mention of Petitioner’s pending state habeas case (see ECF Nos. 58-72, 58-73).
Five months after withdrawing from Petitioner’s direct appeal, Mr. Cook filed a motion to
withdraw from Petitioner’s state habeas case on July 2, 2015 (ECF No. 72-1). In his motion, Mr.
Cook wrote that there had been a breakdown in communication between Petitioner and Mr. Cook
that led to Mr. Cook’s withdrawal from Petitioner’s direct appeal and that, given that the habeas
case was a matter related to Petitioner’s direct appeal, Mr. Cook should be granted leave to
withdraw and “Petitioner should be afforded new appointed counsel under the circumstances”
(ECF No. 72-1). Judge Ferguson granted Mr. Cook’s motion and, in the accompanying Order,
stated, “A separate order appointing new counsel will be entered as necessary” (ECF No. 72-2).
Judge Ferguson included this language in the Order even though, at the time, Mr. Saad was still

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listed as counsel of record for Petitioner (see ECF No. 58-58). The clerk of court was directed to
send a copy of the Order removing Mr. Cook as counsel to Mr. Saad (ECF No. 72-2).
4. Mr. Saad’s Representation
While Petitioner’s relationship with Mr. Cook declined, Mr. Saad remained counsel of
record in Petitioner’s ongoing state habeas case (see ECF No. 58-58). Mr. Saad was appointed to
represent Petitioner in October 2014 at the time of Ms. Dixon’s withdrawal from the case (ECF
No. 58-58), and to date no order has been entered removing him as counsel of record (see ECF
No. 72).
According to Petitioner, Mr. Saad “made no attempt to communicate with [Petitioner]”
following his appointment to Petitioner’s state habeas case in October 2014 (ECF No. 65 at 20).
After Mr. Saad failed to contact Petitioner for over one year following his appointment, Petitioner
states that he filed an ethical complaint against Mr. Saad in November 2015 (ECF No. 72-7). While
Mr. Saad’s response to the complaint has not been included in the record, Petitioner claims that
Mr. Saad asserted in his response that he was unaware of his appointment, “that the [Circuit Court]
did not provide him with a copy of the order appointing him, that [Mr.] Cook did not discuss the
matter with him and that [Ms.] Dixon . . . likewise failed to mention his appointment” (ECF No.
72-7).
In a letter dated December 1, 2017, Stacy Adkins, Judge Ferguson’s law clerk, wrote to
Joanne Kirby of the Lawyer Disciplinary Counsel in regard to Petitioner’s complaint against Mr.
Saad (ECF No. 72-3). In her letter, Ms. Adkins wrote that “Mr. Saad had expressed reservation
about representing [Petitioner]” and, though there was an entered order appointing Mr. Saad as
counsel, Ms. Adkins “did not think [the court] needed to appoint Mr. Saad” because, at the time
of Mr. Saad’s appointment, Mr. Cook was still representing Petitioner in the state habeas

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proceedings (ECF No. 72-3). Ms. Adkins also addressed Mr. Cook’s withdrawal from the case,
writing, “Since [Petitioner] did not want representation or request new counsel, Judge Ferguson
did not appoint new counsel” (ECF No. 72-3). Ms. Adkins concluded her letter by saying, “As I
was unaware Mr. Saad was on this case, it logically follows that Mr. Saad was unaware he was on
the case. I asked Mr. Saad to draft an Amended Order removing him as counsel of record for
[Petitioner’s] habeas case” (ECF No. 72-3). Mr. Saad never entered any such order thereafter (see
ECF No. 72).
This Court finds no support for Ms. Adkins’ assertion that Petitioner indicated that he did
not want representation in his state habeas proceedings. The Court also notes that, while Mr. Saad
allegedly asserted that he was unaware of his appointment, the clerk of the Circuit Court was
directed to send Mr. Saad a copy of both the order by which he was appointed (ECF No. 58-58)
and the order granting Mr. Cook’s motion to withdraw the following year (ECF No. 72-2).
5. Mr. Meadows’ Representation
After the Circuit Court granted Mr. Cook’s motion to withdraw in July 2015, Petitioner’s
state habeas case laid dormant in state court for nearly a year (see ECF No. 72). Then, on May 18,
2016, Judge Ferguson entered a Scheduling Order in which he stated, “Petitioner [ ] previously
indicated he did not wish to have an attorney and thus is representing himself” (ECF No. 72-4).
Again, this Court finds no evidence in the record to support the inference that Petitioner at any
time indicated that he did not wish to have representation in his state habeas proceedings. Judge
Ferguson’s May 2016 Order directed Petitioner to file an Amended Petition no later than July 1,
2016, less than two months later, and threatened that Petitioner’s failure to file such a petition
would result in his case being dismissed (ECF No. 72-4).

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On June 29, 2016, Petitioner filed a pro se Motion for Enlargement of Time (ECF No. 725). The Circuit Court granted the motion on July 7, 2016, resetting the deadline for September 1,
2016 (ECF No. 72-6). On August 30, 2016, Petitioner filed another pro se motion in the Circuit
Court, moving for the court to replace court-appointed counsel (ECF No. 72-7). In his motion,
Petitioner asserted that at no point had he waived his right to counsel in his state habeas
proceedings and that no motion or order had been entered removing Mr. Saad as counsel of record
even after the court had directed Mr. Saad to prepare such an order (ECF No. 72-7). As such,
Petitioner requested that the court replace Mr. Saad as counsel of record (ECF No. 72-7).
Nearly five months after Petitioner’s request for new counsel, Judge Ferguson entered an
order appointing Michael Meadows as counsel for Petitioner in his ongoing state habeas
proceedings on January 18, 2017 (ECF No. 72-8). Judge Ferguson directed Mr. Meadows to file
an amended petition on Petitioner’s behalf by May 1, 2017 (ECF No. 72-8). On June 16, 2017,
more than a month-and-a-half after the filing deadline, Mr. Meadows filed a Motion to Extend
Time in the Circuit Court, requesting additional time to prepare Petitioner’s amended petition
(ECF No. 72-9). The court granted the motion, extending the filing deadline to August 31, 2017
(ECF No. 72-10). As of September 6, 2017, no amended petition had been filed in the Circuit
Court on Petitioner’s behalf (see ECF No. 72).
Reading all facts in a light most favorable to Petitioner, the Court finds the above facts to
be true. In doing so, the Court accepts Petitioner’s Objection B. To the extent that the above
findings of fact are inconsistent with the present PF&R, the Court rejects the PF&R’s proposed
findings and accepts Petitioner’s objections thereto, as noted in Petitioner’s Objection A.

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b. Petitioner’s Objection C: Standard to Determine Whether Exhaustion
Should Be Excused2
In light of the Court’s findings of fact regarding Petitioner’s ongoing state habeas case as
detailed above, the Court finds that there has been an inordinate delay in state court proceedings
such that Petitioner’s state remedies have been rendered ineffective. Accordingly, exhaustion of
Petitioner’s ineffective assistance of counsel claim should be excused at this time.
Section 2254(b)(1)(A) requires that a state prisoner exhaust state court remedies before
seeking federal relief. 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless
it appears that the applicant has exhausted the remedies available in the courts of the State”).
Though this exhaustion requirement is not jurisdictional, the Supreme Court has
encouraged a “rigorously enforced total exhaustion rule” to “protect the state courts’ role in the
enforcement of federal law and prevent disruption of state judicial proceedings” and to facilitate
more comprehensive development of factual records before they are presented to the federal courts
for review. Rose v. Lundy, 455 U.S. 509, 518–19 (1982). Even with this call for rigorous
enforcement, though, the rule of exhaustion is a rule of comity and should be “applied with
flexibility.” Patterson v. Leeke, 556 F.2d 1168, 1170 (4th Cir. 1977).
Section 2254(b)(1)(B) provides that exhaustion may be excused if “there is an absence of
available State corrective process or circumstances exist that render such process ineffective to
protect the rights of the applicant.” The Fourth Circuit has recognized that, even under the Supreme

In light of the Court’s findings below regarding the applicable standard for consideration of whether exhaustion
should be excused, the Court does not reach Petitioner’s Objections D and E at this time. As explained in the text that
follows, Petitioner’s arguments regarding the Barker factors and whether the State breached an obligation to provide
timely appellate review are arguments in support of his Petition on its merits. As the inquiry of this Memorandum
Opinion and Order ends at the threshold question of whether Petitioner’s case should be dismissed for failure to
exhaust, the Court does not consider these substantive arguments at this time.
2

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Court’s call for rigorous enforcement of the total exhaustion requirement, there are circumstances
under which federal courts should excuse exhaustion. See Farmer v. Cir. Ct. of Md. for Balt. Cty.,
31 F.3d 219, 223 (4th Cir. 1994) (“There is . . . authority for treating sufficiently diligent, though
unavailing, efforts to exhaust as, effectively, exhaustion, and for excusing efforts sufficiently
shown to be futile in the face of state dilatoriness or recalcitrance”). For example, “[s]tate remedies
may be rendered ineffective by inordinate delay or inaction in state proceedings.” Ward v.
Freeman, 46 F.3d 1129 at *1 (4th Cir. 1995) (unpublished table decision).
In this District, “an inordinate and unjustified delay may excuse the petitioner from the
traditional statutory requirement of exhaustion.” Walkup v. Haines, 2005 WL 2428163 at *3
(S.D.W.Va. Sept. 30, 2005). Petitioner argues exhaustion should be excused for his ineffective
assistance of counsel claim due to the inordinate and ongoing delay in his state habeas case (ECF
No. 65 at 134).
In considering whether a delay is inordinate and unjustified such that exhaustion should be
excused, courts look to several factors including: (1) the length of the delay (see Farmer, 31 F.3d
at 223), (2) the significance of any action that has been taken in state court (see Lee v. Stickman,
357 F.3d 338, 342 (3d Cir. 2004)), and (3) the party responsible for the complained-of delay (see
Matthews v. Evatt, 51 F.3d 267 n.* (4th Cir. 1995) (unpublished decision)).3 If an inordinate delay
is found, the burden shifts to the State to provide justification for the delay and to demonstrate why

The Court notes that, while the Fourth Circuit has ruled that an “undue delay in processing an appeal may rise to the
level of a due process violation” (United States v. Johnson, 732 F.2d 379, 381 (4th Cir. 1984)), at no point has the
Court required such a showing as a prerequisite for excusing exhaustion. See Ward v. Freeman, 46 F.3d 1129 at *1
(4th Cir. 1995) (unpublished opinion). But see Gary v. Bodison, 2010 WL 2195464 at *3 (D.S.C. June 1, 2010)
(“Federal intervention on the merits of a state [post-conviction relief] application is generally warranted only in cases
where a delay in state court proceedings amounts to a denial of a petitioner’ due process rights.”). While the Barker
factors discussed in the PF&R are undoubtedly the appropriate standard for analysis of Petitioner’s substantive claim
that the delay in his appeal amounted to a due process violation, the PF&R prematurely applied those factors to
determine whether exhaustion should be excused. Petitioner is not required to make a showing of a due process
violation in order for the Court to find here at the outset that there has been an inordinate delay in his state court
proceedings such that exhaustion should now be excused.
3

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the petitioner should still be required to exhaust his state court remedies before seeking relief in
federal court. Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994). The Court examines each of these
factors in turn.
i. Length of Delay
Petitioner argues that the Court should find that the delay in his state habeas proceedings
is inordinate because his case has been pending for four-and-a-half years and “no significant
progress has occurred since its inception” (ECF No. 65 at 20).
In considering whether there has been inordinate delay in a state court proceeding, courts
often look first to the length of the delay at issue. See Ward v. Freeman, 46 F.3d 1129 at *1 (4th
Cir. 1995) (unpublished opinion). In cases of brief delays, courts have declined to excuse
exhaustion of state remedies. See Sparks v. Clarke, 2016 WL 1054721 at *4 (E.D.Va. Mar. 10,
2016) (declining to excuse exhaustion where the state case had only been pending for one year and
three months); Burton v. S.C. Dep’t of Corr., 2005 WL 3465858 at *6 (D.S.C. Dec. 16, 2005)
(declining to excuse exhaustion where the state case had only been pending for seven months).
In cases of more extensive delays, however, courts have been far more willing to excuse
exhaustion. See Moore v. Deputy Comm’r of SCI-Huntingdon, 946 F.2d 236, 242 (3d Cir. 1991)
(excusing exhaustion after a five-year delay); Mathis v. Hood, 851 F.2d 612, 615 (2d Cir. 1988)
(excusing exhaustion after a six-year delay); Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.
1986) (excusing exhaustion after a delay of two-and-a-half years); Codispoti v. Howard, 589 F.2d
135, 142 (3d Cir. 1978) (excusing exhaustion after a twelve-year delay); United States ex rel.
Geisler v. Walters, 510 F.2d 887, 893 (3d Cir. 1975) (finding a delay of three years and four months
inordinate and excusing exhaustion); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d
Cir. 1973) (finding a three-and-a-half year delay inordinate such that exhaustion should be

16

excused).
Petitioner’s state habeas case has been pending since March 13, 2013 (ECF No. 72). The
Court notes, however, that Petitioner’s direct appeal was pending at the time Petitioner filed his
state habeas case and that the direct appeal was not decided until November 20, 2015 (ECF No.
58-76). Given that several of the claims Petitioner raised in his state habeas case were also claims
raised in his direct appeal, the Court recognizes that the Circuit Court may have been justified in
unofficially staying Petitioner’s habeas case while the West Virginia Supreme Court considered
Petitioner’s direct appeal. Even if that delay of two years and eight month was justifiable, however,
Petitioner’s direct appeal has now been decided for almost two years and his case has been before
the Circuit Court for four-and-a-half years total. This length of time, while not dispositive,
indicates that there has been an inordinate delay.
In cases where the length of the delay in state court proceedings is not so egregious as to
be dispositive, courts rely on other factors to inform their decisions as to whether to excuse
exhaustion. See Tramel v. Idaho, 459 F.2d 57, 58 (10th Cir. 1972) (finding a two-year delay suspect
and remanding to the District Court for an evidentiary hearing on the cause of the delay); Dixon v.
Florida, 388 F.2d 424, 426 (5th Cir. 1968) (finding a 19-month delay suspect and remanding to
the District Court for an evidentiary hearing to determine whether the delay was justifiable); Jones
v. Crouse, 360 F.2d 157, 158 (10th Cir. 1966) (ruling that the District Court could not dismiss a
Section 2254 petition for failure to exhaust without knowing the facts and circumstances that gave
rise to the state court delay, and remanding the case back to the trial court to determine whether
the 18-month delay in the petitioner’s state court proceedings rendered his state court remedies
inadequate).
On September 7, 2017, this Court sought additional information from the Cabell County

17

Circuit Court concerning Petitioner’s state habeas proceedings.4 The documents obtained in that
inquiry were filed as attachments to the Court’s Order of September 17, 2017 (ECF Nos. 71, 72).
Given the information in those documents, the Court finds that the record is now sufficient for a
comprehensive review of the other factors relevant to consideration of Petitioner’s request to
excuse exhaustion.
ii. Action in State Court
In conjunction with the length of delay in state court, courts also consider “the degree of
progress made in state court.” Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004). Where a state
court case is proceeding normally, a federal court should not excuse exhaustion even if the case’s
progress in state court is slow. See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987).
See also Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir. 2002) (not excusing exhaustion where,
though the case had been pending for two years in state court, the court had held a hearing and
ruled on the petition in that time); Simmons v. Garman, 2017 WL 2222526 at *3 (E.D.Pa. Feb. 14,
2017) (declining to excuse exhaustion where, during a 34-month delay, an amended petition was
filed and counsel was appointed). The Third Circuit has noted that a federal court should “stay its
hand” if there is evidence that a state court action is proceeding normally or has been “reactivated.”
Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995).
If, on the other hand, there is no indication that a state court case is achieving meaningful
progress or nearing disposition, then the federal court should excuse exhaustion. See Burkett, 826
F.2d at 1218. See also Lee, 357 F.3d at 342 (excusing exhaustion after no real progress had been

4

Though Magistrate Judge Aboulhosn directed Respondent to file sufficient records to facilitate an intelligent review
of Petitioner’s exhaustion efforts in state court (ECF No. 55), the vast majority of documents attached to Respondent’s
Second Motion to Dismiss pertained exclusively to Petitioner’s direct appeal (see ECF No. 58 and attached exhibits).
Finding the record inadequately developed on the matter of Petitioner’s pending state habeas case, the Court obtained
the state court records that Respondent failed to provide.

18

made in state court proceedings after eight years); Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d
Cir. 1986) (excusing exhaustion where the state court case had been pending without hearing for
over two years); Simmons v. Garman, 2017 WL 2222526 at *3 (E.D.Pa. Feb. 14, 2017) (noting
that exhaustion should be excused after three-year delays during which “no meaningful action
towards resolution has been taken in the state court”).
Petitioner asserts that “no significant progress” has been made in his state habeas
proceedings since he filed his petition in March 2013 (ECF No. 65 at 20). In response, Respondent
offers only a recitation of the case’s history and an assertion that the “circuit court has provided
every effort to allow Petitioner to properly adjudicate his claims. . .” (ECF No. 59 at 12).
The Court does not find support for Respondent’s assertions in the record. In cases where
courts have “stayed their hands” so as not to impede state court proceedings in which meaningful
progress has been made, the courts have noted the importance of, for example, amended petitions
being filed, court-appointed counsel being actively engaged, and hearings being held by the state
courts.
Though Petitioner filed his state habeas case in 2013 and the case has now been pending
for nearly five years, no amended petition has been filed on Petitioner’s behalf, court-appointed
attorneys have missed several court deadlines to file an amended petition, and the Circuit Court
has not held any hearing (see ECF No. 72). Additionally, though the Circuit Court has appointed
several attorneys to represent Petitioner, none of those attorneys has diligently met deadlines to
file an amended petition on Petitioner’s behalf (see ECF No. 72). The record is clear that the Circuit
Court has failed to achieve meaningful progress in Petitioner’s state habeas case in the four-anda-half years it has been pending. In fact, Respondent admits in his Second Motion to Dismiss that
Petitioner’s state habeas proceedings “still appear[ ] to be in their infancy” (ECF No. 58 at 3). The

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Court agrees.
iii. Responsible Party
While the length of delay and progress in state court are both factors the Court should
consider in determining whether a delay in state court is inordinate such that exhaustion should be
excused, it is a general rule that the fault for any delay found to be inordinate must lie with the
State and not with Petitioner. Walkup v. Haines, 2005 WL 2428163 at *3 (S.D.W.Va. Sept. 30,
2005). “To excuse the exhaustion requirement . . . the delay must be attributable to the state’s
procedures . . . and not attributable to petitioner’s own actions.” Id. (finding that a three-year delay
was not inordinate where the petitioner contributed to the delay with voluminous filings and four
separate addenda to his petition in the span of six months). See also Matthews v. Evatt, 51 F.3d
267 n.* (4th Cir. 1995) (unpublished decision) (“[T]he nearly four-year delay in this case does not
excuse exhaustion because some of the delay is attributable to [the petitioner]”); Farmer v. Cir.
Ct. of Md. for Balt. Cty., 31 F.3d 219, 223 (4th Cir. 1994) (finding that exhaustion should not be
excused where the petitioner was at fault for the delay in state court proceedings).
Petitioner argues that the delay in his state habeas proceedings are entirely the fault of the
State. He asserts, “[T]his Court should find that the delay in [Petitioner’s state habeas case] is
exactly what it appears to be: the product of the trial court’s recalcitrance and its ill-will toward
the Petitioner” (ECF No. 65 at 134).
Respondent, on the other hand, argues that any delay is attributable to Petitioner on account
of his quarreling with court-appointed counsel and his medical problems (ECF No. 59 at 12).
Respondent argues, “[T]he State cannot be held responsible for delays cause[d] by Petitioner’s
failure to pursue his appeal, Petitioner’s medical emergencies, or Petitioner’s repeated and brash
antagonistic behavior towards appointed counsel,” and adds, “[the State has] done nothing to

20

obstruct Petitioner from seeking relief” (ECF No. 59 at 12). Respondent further asserts, “[T]here
is no reason to believe that, absent Petitioner’s own interference, Petitioner’s State habeas
proceedings will [not] proceed in a timely and efficient manner” (ECF No. 59 at 11).
This Court finds Respondent’s characterization of the causes of the nearly five-year delay
in Petitioner’s state habeas case without merit. Respondent’s assertion that the case will proceed
in a timely and efficient manner from this point forward is frankly improbable. At the outset of
Petitioner’s state habeas case, the Circuit Court took nine months to contact Petitioner after he
filed his habeas petition and an additional month thereafter to appoint counsel to file an amended
petition on Petitioner’s behalf (ECF No. 72). After the court’s deadline for the amended petition
passed without any amended petition having been filed, the court extended that deadline
indefinitely by granting a motion to extend the deadline but failing to specify a new deadline or to
enter any further order scheduling a new deadline (ECF Nos. 58-48, 72).
Then, without having set a new deadline for the amended petition, the court granted both
Ms. Dixon’s motion to withdraw as counsel in October 2014 and Mr. Cook’s motion to withdraw
as counsel in July 2015 (ECF No. 72). Though the court appears to have appointed new
representation for Petitioner in October 2014 (ECF No. 58-58), Judge Ferguson’s clerk admitted
in December 2015 that she had failed to communicate that assignment to the newly-appointed
attorney (ECF No. 72-3).
At the time the Circuit Court identified its own error in this miscommunication in
December 2015, the Supreme Court of West Virginia had already ruled on Petitioner’s direct
appeal (ECF No. 58-78). Still, even after court identified and admitted its error, the court took no
further steps in Petitioner’s case for another five months (see ECF No. 72). After those five months
passed, the court then erroneously ruled that Petitioner had waived his right to representation in

21

his state habeas proceedings and ordered Petitioner to file an amended petition with the threat of
dismissal for failure to do so (ECF No. 72-4).
Petitioner brought the absence of his waiver of counsel to the court’s attention in August
2016 in his motion to have new counsel appointed (ECF No. 72-7), but it took the court five months
to respond to Petitioner’s pro se motion and to appoint new counsel (see ECF No. 72-8). Finally,
though the court appointed Mr. Meadows to represent Petitioner in January 2017, Mr. Meadows’
representation has been inadequate at best. Mr. Meadows missed the court’s May 2017 deadline
for filing an amended petition, moved for more time to file a month-and-a-half after that deadline
had already passed, and then missed a second filing deadline in August 2017 (see ECF No. 72).
As of September 6, 2017, Mr. Meadows had still not filed an amended petition on Petitioner’s
behalf and there is no indication in the record that he intends to do so any time soon (see ECF No.
72).
While some of these delays are attributable to the court’s management of its docket, others
are more appropriately attributable to court-appointed counsel. Even so, delays caused by courtappointed counsel are attributable to the State and not to Petitioner in this context. Walkup v.
Haines, 2005 WL 2428163 at *4 (S.D.W.Va. Sept. 30, 2005). “Unjustified delay by appointed
counsel is not imputed to a habeas petitioner if he did not contribute to the delay.” Id.
Respondent nevertheless argues that these delays on the parts of court-appointed counsel
should be attributed to Petitioner because of Petitioner’s “continued conflict with his attorneys”
(ECF No. 59 at 12). Indeed, where courts have found that a petitioner’s perpetual conflicts with
his attorneys have caused the delay in his state court proceedings, they have attributed such delays
to the petitioner and declined to excuse exhaustion. See, e.g., Harper v. Ballard, 2013 WL 285412
at *8 (S.D.W.Va. Jan. 24, 2013) (declining to excuse exhaustion where petitioner “consistently

22

acted without regard to his attorneys . . . and asked the circuit court judge several times to permit
him to proceed pro se, while other times requesting that habeas counsel be appointed”).
In other instances, however, courts have been unwilling to attribute state court delays to
petitioners even where there has been conflict between those petitioners and their court-appointed
attorneys. See Wojtczak v. Fulcomer, 800 F.2d 353, 354–55 (3d Cir. 1986). In Wojtczak, the Third
Circuit considered a case substantially similar to the one now before this Court. See id. In that case,
five different attorneys were appointed to represent the petitioner over a period of thirty three
months. Id. at 354. The State argued that any delay in the case had been the “result of [the
petitioner’s] inability to cooperate with his lawyers.” Id. After reviewing the record consisting
“almost entirely” of letters exchanged between the petitioner and his attorneys, the court agreed
that there was “no doubt” that the petitioner had been “quarrelsome” with his court appointed
attorneys, but the court nevertheless ruled that the petitioner was not at fault for the delay. Id. at
354–55.
In explaining its decision, the Third Circuit pointed to the following: several of the
petitioner’s appointed attorneys had failed to respond to the petitioner despite the petitioner’s
repeated efforts to contact them; none of the attorneys had successfully filed an amended petition
on the petitioner’s behalf despite each of them having had several months to do so; and the state
court had permitted each of the five attorneys to withdraw from the petitioner’s case, sometimes
without notifying the petitioner of the withdrawal beforehand. Id. at 355. Under these
circumstances, the Third Circuit found that the “inexcusable delay” of thirty three months was
“attributable to disinterest on the part of court appointed counsel and to a failure on the part of the
court to require them to provide minimally effective representation.” Wojtczak, 800 F.2d at 355.
In this case, Respondent contends that “Petitioner is already on his third set of counsel”

23

(ECF No. 59 at 12) but fails to mention that Petitioner’s first appointed counsel withdrew because
she took a job with the prosecutor’s office, Petitioner’s second appointed counsel withdrew
because of conflicts with Petitioner in a separate matter, and Petitioner’s third appointed counsel
never even participated in Petitioner’s case because the Circuit Court failed to inform him of his
appointment. Now Petitioner is represented by a fourth attorney who, in the past nine months, has
missed two filing deadlines without repercussion and still has neither filed an amended petition
nor sought hearing on Petitioner’s behalf.
Much like in Wojtczak, Respondent has produced dozens of letters between Petitioner and
his appointed counsel, but most of these letters pertain to Petitioner’s relationships with counsel in
his direct appeal and none of them support a finding that Petitioner has been quarrelsome with the
attorneys appointed in his state habeas case (see ECF No. 58 at 4–7). Even though there is evidence
of conflict between Petitioner and Mr. Cook, who eventually withdrew from representation in both
Petitioner’s direct appeal and in his state habeas case, the conflict arose from matters involved in
Petitioner’s direct appeal and had little if anything to do with his pending state habeas case (see
ECF No. 72-1).
Even if Petitioner could be blamed for Mr. Cook’s withdrawal, there is no evidence to
support a finding that Petitioner was at fault for Ms. Dixon’s withdrawal from Petitioner’s case,
for Mr. Saad’s failure to communicate with Petitioner, for the Circuit Court’s failure to
communicate with Mr. Saad, or for Mr. Meadows’ failure to meet court deadlines and file an
amended petition as directed. As it is “wholly untenable to penalize [petitioner] for his attorneys’
failures and the [court’s] inability to manage its own docket,” Story v. Kindt, 26 F.3d 402, 406 (3d
Cir. 1994), the delays in Petitioner’s state habeas case cannot be held against Petitioner.
Accordingly, the Court finds that the delay in Petitioner’s ongoing state habeas case is the

24

fault of the state court and the attorneys who have been appointed to represent Petitioner in his
state court proceedings. As such, the delay is not attributable to Petitioner. Due to the four-and-ahalf years of delay, the inaction of the state court within that time, and the fault of the State in
causing the delay, the Court finds that the delay in Petitioner’s ongoing state habeas case is
inordinate.
iv. Justification for Delay
Even when the Court finds an inordinate delay attributable to the State, however, it may
nevertheless require a petitioner to exhaust his state court remedies if the State can show cause for
him to do so. “Although the existence of an inordinate delay does not automatically excuse
exhaustion, it does shift the burden to the state to demonstrate why exhaustion should still be
required – a burden that is difficult to meet.” Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994).
As discussed above, the Court finds that the delay in Petitioner’s state habeas case is
inordinate. It is Respondent’s responsibility, then, to demonstrate to the Court why Petitioner
should nevertheless be required to exhaust his state court remedies before being heard in federal
court. Respondent offers no such justification. In his Memorandum of Law filed in support of his
Motion to Dismiss, Respondent gives a recitation of the facts of Petitioner’s state habeas case but
makes no effort to explain the substantial gaps in time between the events he recites (ECF No. 59
at 11). Instead he argues only that Petitioner is to blame for the delays and that the Court should
therefore decline to excuse exhaustion (ECF No. 59 at 12). As discussed previously, the Court
declines to attribute the state court delays to the actions of Petitioner and therefore rejects
Respondent’s argument.
Again, because Petitioner’s direct appeal was not decided until November 20, 2015, the
first two years and eight months of the delay at issue here may be justified in that it was judicially

25

efficient for the Circuit Court to wait for the West Virginia Supreme Court’s ruling to proceed
with Petitioner’s similar claims in his habeas case. Even if the first part of the delay was justified,
however, Respondent offers no justification for the ongoing delay that has persisted since that
time.
“[W]hen it is perfectly apparent, as it is here, that a prisoner’s requests to the state court
and requests to state-appointed counsel have been to no avail, we have held that the prisoner need
not take additional steps in the state court before he may be heard in the federal courts.” Brooks v.
Jones, 875 F.2d 30, 31 (2d Cir. 1989). The Court finds that there has been a four-and-a-half year
delay in Petitioner’s state habeas case, that no meaningful progress has been achieved in the case
since it was filed, and that the delay in progressing the case is attributable to the State both by
failures of the state court and failures of court-appointed counsel. The Court additionally finds that
no justification has been offered for the State’s failures in communication or for the State’s delay
in achieving progress in this case since Petitioner’s direct appeal was decided by the West Virginia
Supreme Court in November 2015. As such, this Court finds that there has been an inordinate
delay in Petitioner’s state habeas case such that exhaustion should be excused for purposes of
Petitioner’s Section 2254 Petition now pending before this Court.
VI.

Conclusion

For the foregoing reasons, the Court ACCEPTS Petitioner’s objections as specified (ECF
No. 70) and REJECTS the Magistrate Judge’s Findings and Recommendation (ECF No. 66).
Therefore, Respondent’s Second Motion to Dismiss for Failure to Exhaust (ECF No. 58) is
DENIED and Petitioner is EXCUSED from the exhaustion requirement of Section 2254.

26

Petitioner’s Petition (ECF No. 1) is REFERRED back to the Magistrate Judge for further
proceedings consistent with this Memorandum Opinion and Order.5
The Court DIRECTS the Clerk to forward copies of this written opinion and order to
Magistrate Judge Aboulhosn, all counsel of record, and any unrepresented parties.

ENTER:

September 27, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

Still outstanding in this case are Petitioner’s request for counsel to be appointed and Petitioner’s unfiled Motion for
Partial Summary Judgment (ECF No. 70 at 40–62). The Court does not reach these matters at this time. If Petitioner
still wishes to have the matters considered, the Court directs Petitioner to raise them with the Magistrate Judge.
5

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