Galloway v. Ballard

Filing 14

MEMORANDUM OPINION AND ORDER: Adopting the 13 Proposed Findings and Recommendation of the Magistrate Judge; granting in part and denying in part the 7 Motion to Dismiss Without Prejudice or for Stay Due to Petitioner's Failure to Exhaust Hi s State Remedies; granting the motion to the extent that it seeks a stay of the proceedings; denying the motion to the extent that it seeks dismissal of the Petition; granting Petitioner's 10 Motion for Stay and Abeyance; holding in abeyance P etitioner's 1 Petition Under 28 U.S.C. § 2254 Writ of Habeas Corpus by a Person in State Custody pending the exhaustion of the Petitioner's available state court remedies; directing the Clerk to transfer this case to the inactive doc ket pending further order of the Court; directing Petitioner to notify the Court and Respondent within 14 days of the resolution of any additional state habeas proceedings, or the result thereof, and of his intent to proceed with this matter. Signed by Judge Irene C. Berger on 1/3/2019. (cc: attys; Magistrate Judge Tinsley; any unrepresented party) (slr) Modified on 1/4/2019 (slr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
DON GARFIELD GALLOWAY,
Petitioner,
v.

CIVIL ACTION NO. 5:17-cv-00993

DONNIE AMES, Superintendent,
Mount Olive Correctional Complex,
Respondent.

MEMORANDUM OPINION AND ORDER
On January 27, 2017, the Petitioner filed his Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (Document 1). On March 30, 2018, The Warden’s
Motion to Dismiss Without Prejudice or for Stay Due to Petitioner’s Failure to Exhaust His State
Remedies (Document 7) was filed. On May 11, 2018, the Petitioner’s Motion for Stay and
Abeyance (Document 10) was filed.
By Standing Order (Document 3) entered on January 30, 2017, this action was referred to
the Honorable Dwane L. Tinsley, 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. On
December 11, 2018, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 13) wherein it is recommended that: 1) The Warden’s Motion to Dismiss Without
Prejudice or for Stay Due to Petitioner’s Failure to Exhaust His State Remedies (Document 7) be
granted in part and denied in part; 2) the Petitioner’s Motion for Stay and Abeyance (Document
1

10) be granted; 3) the Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody (Document 1) be held in abeyance pending the exhaustion of the
Petitioner’s available state court remedies; 4) the case be transferred to the inactive docket pending
further order of the Court; and 5) the Petitioner shall notify the Court and the Respondent within
fourteen (14) days of the resolution of any additional state habeas proceedings, or the result thereof,
and of his intent to proceed with this matter.
Objections to the Magistrate Judge’s Proposed Findings and Recommendation were due
by December 31, 2018, and none were filed by either party. The Court is not required to review,
under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as
to those portions of the findings or recommendation to which no objections are addressed. Thomas
v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo
review and the Petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); see also
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS as follows:
1)

The Warden’s Motion to Dismiss Without Prejudice or for Stay Due to Petitioner’s
Failure to Exhaust His State Remedies (Document 7) is GRANTED IN PART
AND DENIED IN PART; the motion is GRANTED to the extent that is seeks a
stay of the proceedings, and is DENIED to the extent that is seeks dismissal of the
Petition;

2)

The Petitioner’s Motion for Stay and Abeyance (Document 10) is GRANTED;

3)

The Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Document 1) is HELD IN ABEYANCE pending the
exhaustion of the Petitioner’s available state court remedies;
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4)

This case shall be TRANSFERRED TO THE INACTIVE DOCKET by the
Clerk pending further order of the Court; and

5)

The Petitioner shall notify the Court and the Respondent within fourteen (14) days
of the resolution of any additional state habeas proceedings, or the result thereof,
and of his intent to proceed with this matter.

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Tinsley, counsel of record, and any unrepresented party.
ENTER:

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January 3, 2019