Morgan v. Francis et al, No. 5:2018cv01359 - Document 19 (S.D.W. Va. 2019)

Court Description: MEMORANDUM OPINION AND ORDER ADOPTING the 17 Proposed Findings and Recommendation of the Magistrate Judge, GRANTING the Respondent's 13 Motion to Dismiss for Failure to Exhaust, DISMISSING the Petitioner's 2 Petition Under 28 U.S.C. Section 2254 for Writ of Habeas Corpus by a Person in State Custody, and REMOVING this matter from the Court's docket. Signed by Judge Irene C. Berger on 7/1/2019. (cc: attys; any unrepresented party; Magistrate Judge Aboulhosn) (btm)

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Morgan v. Francis et al Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION DYLAN RAY MORGAN, Petitioner, v. CIVIL ACTION NO. 5:18-cv-01359 MIKE FRANCIS, Respondent. MEMORANDUM OPINION AND ORDER On October 16, 2018, the Petitioner, proceeding pro se, filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Document 2). Also before the Court is the Respondent’s Motion to Dismiss for Failure to Exhaust (Document 13) filed on November 30, 2018. By Standing Order (Document 4) entered on October 18, 2018, this action was referred to the Honorable Omar J. Aboulhosn, 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 May 31, 2019, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 17) wherein it is recommended that this Court grant the Respondent’s Motion to Dismiss for Failure to Exhaust (Document 13), dismiss the Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Document 2), and remove this matter from the Court’s docket. 1 Dockets.Justia.com Objections to the Magistrate Judge’s Proposed Findings and Recommendation were due by June 17, 2019, 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 that the Respondent’s Motion to Dismiss for Failure to Exhaust (Document 13) be GRANTED, the Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Document 2) be DISMISSED, and this matter be REMOVED from the Court’s docket. The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge Aboulhosn, counsel of record, and any unrepresented party. ENTER: 2 July 1, 2019

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