McFarland v. Ballard

Full title: ROBERT MCFARLAND, Petitioner, v. DAVID BALLARD, Warden, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Date published: Jul 29, 2016

CIVIL ACTION NO. 1:15CV5 (N.D.W. Va. Jul. 29, 2016)

Opinion

CIVIL ACTION NO. 1:15CV5

07-29-2016

ROBERT MCFARLAND, Petitioner, v. DAVID BALLARD, Warden, Respondent.

Judge Keeley

( ) ORDER ADOPTING MAGISTRATE JUDGE'S OPINION/REPORT AND RECOMMENDATION

Pending before the Court is the Report and Recommendation ("R&R") of the Honorable Robert W. Trumble, United States Magistrate Judge (Dkt. No. 40), dated July 8, 2016. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to review de novo those portions of the magistrate judge's findings to which objection is made. Failure to file objections to the R&R permits the Court to review the recommendation under the standards that it believes are appropriate, and under these circumstances, the parties' right to de novo review is waived. See Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979). To date, no objections have been filed. Accordingly, the review is for clear error. Id.

Upon review of the R&R and the record, the Court adopts the opinion of the Magistrate Judge for the reasons discussed in the R&R. Therefore, the Court:

1. ADOPTS the R&R (Dkt. No. 40);

2. DENIES the respondent's motion to dismiss the petition as untimely (Dkt. No. 14);

3. DENIES the respondent's motion for summary judgment (Dkt. No. 23);

4. DENIES the respondent's motion to dismiss for failure to exhaust (Dkt. No. 31);

5. GRANTS IN PART AND DENIES IN PART the petitioner's motion to proceed with Martinez claims or to stay the proceeding pending exhaustion (Dkt. No. 38);

6. STAYS the case; and

7. DIRECTS the petitioner to file his unexhausted claims in state court within 30 days of receipt of this Order; to file quarterly reports, beginning on October 1, 2016, explaining the status of his unexhausted claims; and to file a notice of exhaustion within 30 days from the date his state court remedies have been fully exhausted.

It is so ORDERED.

The Court DIRECTS the Clerk to transmit this Order to counsel of record and to the pro se petitioner by certified mail, return receipt requested. DATED: July 29, 2016.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE