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Stewart v. Ballard

United States District Court, S.D. West Virginia, Charleston

April 7, 2017

JEFFREY WAYNE STEWART, Petitioner,
v.
DAVID BALLARD, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. United States District Judge

         Pending are the objections filed on February 27, 2017, by petitioner Jeffrey Wayne Stewart to Magistrate Judge Dwane L. Tinsley's Proposed Findings and Recommendation (“PF&R”), entered February 13, 2017, and respondent's Motion to Dismiss for Failure to Exhaust, filed July 29, 2016 (ECF No. 13).

         I.

         Petitioner, an inmate at the Mount Olive Correctional Complex in Mount Olive, West Virginia, was convicted in 2004 on two counts of second-degree murder in Braxton County, West Virginia. After the Supreme Court of Appeals of West Virginia refused his direct appeal on January 11, 2006, he filed a petition for habeas corpus in West Virginia state circuit court on November 16, 2006. As detailed further in Judge Tinsley's PF&R, petitioner subsequently amended or supplemented that petition three times. The Nicholas County Circuit Court denied the amended petition on February 27, 2014, and the supreme court denied his appeal on February 9, 2015.

         Petitioner Stewart filed this federal Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 on June 12, 2015. He alleged six grounds (the fifth of which is ineffective assistance of counsel on seven grounds) for issuing a writ of habeas corpus, as elaborated in the PF&R. The magistrate judge entered an order on April 7, 2016, directing respondent David Ballard, Warden at the Mount Olive Correctional Complex, to file an answer or other responsive pleading, and Warden Ballard filed an answer on July 29, 2016. Also on July 29, 2016, Ballard filed a Motion to Dismiss Petition for Failure to Exhaust, and Plaintiff filed a reply to that motion on August 15, 2016.

         In his PF&R, Judge Tinsley found that the following grounds alleged by petitioner were not exhausted inpetitioner's state court proceedings - whether his direct appeal to the supreme court or his state habeas petition:[1]

Ground 3. The state court denied the petitioner due process of law as secured by the Fifth, Eighth and Fourteenth Amendments to the Constitution when the Circuit Court imposed a forty (40) year sentence upon the petitioner for the homicide of Travis Painter.
Ground 5: Ineffective assistance of Counsel as follows:
Ground 5(A): Ineffective assistance of counsel because counsel should have requested co-counsel inasmuch as it was his first murder trial and because he was distracted by the issue of his son's health problems.
Ground 5(C): Ineffective assistance of counsel because counsel failed to request a voluntary manslaughter instruction (based on mutual combat).
Ground 5(G): Ineffective assistance of counsel because counsel failed to object to consecutive 40 year sentences when there were factors about the victims that warranted a disparity in sentencing; sentences were disproportionate to the crimes.
Ground 6: The petitioner was denied a fair and impartial jury trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution when the jury was not instructed on an essential element of Murder in the Second Degree.

PF&R 6-7.

         Judge Tinsley noted that a “mixed petition” with both exhausted and unexhausted claims may be dismissed in its entirety, although United States Supreme Court precedent permits a court to issue a stay of a mixed petition for good cause in order to allow a petitioner to return to state court to exhaust any unexhausted claims. Rhines v. Weber, 544 U.S. 269, 277 (2005). Judge Tinsley recommended that this court grant respondent's motion to dismiss and deny the petition in toto because petitioner has not shown good cause for his failure to exhaust his claims in state court. Judge Tinsley noted he made his recommendation despite the fact that the statute of limitations has by this time already run on petitioner's federal habeas claims, such that petitioner would not be able to reassert those claims in this court after exhausting them in state court. ...


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