Clement v. Ballard, No. 2:2015cv02320 - Document 13 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 12 Proposed Findings and Recommendation; denying without prejudice petitioner's 2 request for habeas corpus relief; granting defendant's 10 Motion to Dismiss, or in the alternative Motion for Stay and Abeyance, insofar as it requests stay and abeyance, STAYS this case to allow petitioner to pursue state court remedies for his unexhausted claims; and holds in abeyance petitioner's 2 habeas petition pending exhaustion of state c ourt remedies; directing that the stay be conditioned upon petitioner pursuing his state court remedies within 30 days of the entry of this Order; petitioner to return to this Court no less than 30 days after exhausting his state court remedies to request that the stay be lifted. Signed by Judge Thomas E. Johnston on 11/2/2015. (cc: petitioner, pro se; counsel of record; any unrepresented party) (taq)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION LARRY CLEMENT, Petitioner, v. CIVIL ACTION NO. 2:15-cv-02320 DAVID BALLARD, Respondent. MEMORANDUM OPINION AND ORDER Pending before the Court are Petitioner’s Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 2), and Defendant’s Motion to Dismiss, or in the alternative Motion for Stay and Abeyance, (ECF No. 10). By Standing Order entered on May 7, 2014, and filed in this case on March 18, 2015, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and a recommendation for disposition (“PF&R”). (ECF No. 4.) Magistrate Judge Eifert filed her PF&R on September 22, 2015, recommending that this Court grant Defendant’s motion insofar as it requests stay and abeyance, deny without prejudice Petitioner’s request for habeas corpus relief, grant Petitioner a stay to pursue state court remedies, and hold Petitioner’s habeas petition in abeyance pending exhaustion of state court remedies. (ECF No. 12 at 2.) 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 Plaintiff’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). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R in this case were due on October 9, 2015. To date, no objections have been filed. Accordingly the Court ADOPTS the PF&R, (ECF No. 12), DENIES WITHOUT PREJUDICE Petitioner’s request for habeas corpus relief, (ECF No. 2), GRANTS Defendant’s Motion to Dismiss, or in the alternative Motion for Stay and Abeyance, (ECF No. 10), insofar as it requests stay and abeyance, STAYS this case to allow Petitioner to pursue state court remedies for his unexhausted claims, and HOLDS IN ABEYANCE Petitioner’s habeas petition pending exhaustion of state court remedies. The Court ORDERS that the stay be conditioned upon Petitioner pursuing his state court remedies within thirty days of the entry of this Order. The Court further ORDERS that Petitioner return to this Court no less than thirty days after exhausting his state court remedies to request that the stay be lifted. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: November 2, 2015

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