Buxton v. Ballard

Filing 25

MEMORANDUM OPINION AND ORDER accepting and incorporating the 24 Findings and Recommendations of the Magistrate Judge; GRANTING Petitioner's request for a stay and abeyance; DENYING without prejudice Respondent's 15 MOTION to Dismiss, as premature, but GRANTING Respondent's alternate request for a stay and abeyance; directing that Petitioner be GRANTED a STAY so that he may pursue his state court remedies for his unexhausted claims and that the stay be conditioned on Petition er pursuing his state court remedies within 30 days of the date that the order to stay is entered; and Petitioner's habeas petition be held in ABEYANCE pending exhaustion of state court remedies, and Petitioner be required to return to federal court within 30 days after he has exhausted his state court remedies and seek to lift the stay, consistent with the findings and recommendations. Signed by Judge Robert C. Chambers on 4/26/2017. (cc: attys; any unrepresented parties) (mkw)

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

TERRY L. BUXTON,
Petitioner,
v.

CIVIL ACTION NO. 3:16-4489

DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Respondent.

MEMORANDUM OPINION AND ORDER

This action was referred to the Honorable Cheryl A. Eifert, United States Magistrate Judge,
for submission to this Court of proposed findings of fact and recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and
recommended that Petitioner’s request for a stay and abeyance (ECF No. 19) be granted;
Respondent’s Motion to Dismiss (ECF No. 15) be denied, without prejudice, as premature, but
Respondent’s alternate request for a stay and abeyance be granted; Petitioner be granted a stay so
that he may pursue his state court remedies for his unexhausted claims and that the stay be
conditioned on Petitioner pursuing his state court remedies within thirty (30) days of the date that
the order to stay is entered; and Petitioner’s habeas petition be held in abeyance pending exhaustion
of state court remedies, and Petitioner by required to return to federal court within thirty (30) days
after he has exhausted his state court remedies and seek to lift the stay. Neither party has filed
objections to the Magistrate Judge=s findings and recommendations.

Accordingly, the Court accepts and incorporates herein the findings and recommendation
of the Magistrate Judge and ORDERS that Petitioner’s request for a stay and abeyance (ECF No.
19) be GRANTED; Respondent’s Motion to Dismiss (ECF No. 15) be DENIED, without
prejudice, as premature, but Respondent’s alternate request for a stay and abeyance be
GRANTED; Petitioner be GRANTED a STAY so that he may pursue his state court remedies
for his unexhausted claims and that the stay be conditioned on Petitioner pursuing his state court
remedies within thirty (30) days of the date that the order to stay is entered; and Petitioner’s
habeas petition be held in ABEYANCE pending exhaustion of state court remedies, and Petitioner
by required to return to federal court within thirty (30) days after he has exhausted his state court
remedies and seek to lift the stay, consistent with the findings and recommendations.
The Court DIRECTS the Clerk to forward copies of this written opinion and order to all
counsel of record, and any unrepresented parties.

ENTER:

-2-

April 26, 2017