Mitchell v. Ballard, No. 2:2012cv02149 - Document 14 (S.D.W. Va. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: Based upon the foregoing discussion, it is ORDERED that the findings made in the 8 Proposed Findings and Recommendations by Magistrate Judge be, and they hereby, are adopted by the court; and the Section 2254 petition, and this action be, and they hereby are dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 9/24/2012. (cc: USMJ Stanley; attys; any unrepresented party) (msa)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON RODGER D. MITCHELL, Petitioner, Civil Action No.: 2:12-2149 v. DAVID R. BALLARD, Warden, Mount Olive Correctional Complex, Respondent. MEMORANDUM OPINION AND ORDER Pending is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed June 14, 2012. This action was previously referred to Mary E. Stanley, United States Magistrate Judge, who, on July 12, 2012, submitted her Proposed Findings and Recommendation pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommends that the petition be dismissed without prejudice inasmuch as petitioner has not exhausted his state remedies. On July 20, 2012, the court received petitioner's objections. The objections demonstrate petitioner has failed to exhaust his state court remedies. It does not appear that his further attempts to exhaust would be futile. He is thus required to pursue the final adjudication of his state habeas claims prior to seeking relief in this court pursuant to section 2254. The objections are not meritorious. Based upon the foregoing discussion, it is ORDERED that: 1. The findings made in the Proposed Findings and Recommendation of the magistrate judge be, and they hereby are, adopted by the court; and 2. The section 2254 petition, and this action, be, and they hereby are, dismissed without prejudice. The Clerk is directed to forward copies of this written opinion and order to all counsel of record, any unrepresented parties, and the magistrate judge. DATED: September 24, 2012 John T. Copenhaver, Jr. United States District Judge

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