United States District Court, S.D. West Virginia, Huntington Division
C. CHAMBERS CHIEF JUDGE.
action was brought pursuant to 28 U.S.C. § 2254.
Currently pending before the Court are the following two
pro se motions filed by Petitioner Michael K.
Merrifield: (1) a “Motion to Waive Exhaustion
Requirement Pursuant to 28 U.S.C. § 2254(b)(1)(B)(ii)
Compelling a de novo Review of Petitioner's Writ of
Habeas Corpus” (ECF No. 3) and (2)
“Motion to Stay and Abeyance” (ECF No. 16 at
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 recommendations for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The
Magistrate Judge has submitted findings of fact and
recommended that this Court deny both motions and dismiss
this action without prejudice. In his objections to the
Magistrate Judge's Proposed Findings and Recommendations,
Petitioner states that he will stipulate to a withdrawal of
his “Motion to Waive Exhaustion Requirement, ”
provided the Circuit Court of Putnam County is proceeding
with its adjudication of his state habeas corpus petition.
However, Petitioner objects to this action being dismissed.
Instead, Petitioner moves the Court to overrule the Proposed
Findings and Recommendations as erroneous and stay this
action pending exhaustion in state court.
Petitioner's state habeas petition has been pending since
May 9, 2011, the Court finds that the Magistrate Judge
thoroughly and thoughtfully considered whether the delay in
resolving the case arises to a constitutional violation under
the factors set forth in Barker v. Wingo, 407 U.S.
514 (1972). The Magistrate Judge found that
Petitioner's own actions resulted in a significant part
of the delay. Proposed Findings and Recommendation,
at 24 (ECF No. 21). As fully outlined by the Magistrate
Judge, Petitioner's disagreements with counsel, requests
for new counsel, and numerous pro se filings have
resulted in the majority of the delay Petitioner now
complains has occurred, Additionally, the Court agrees with
the Magistrate Judge findings that, under Barker,
Petitioner has diligently asserted his rights, and there is
no evidence that the delay has prejudiced his position.
Indeed, the “Final Amended Petition” Petitioner
filed pro se in state court is 850 pages long and
contains 58 grounds for relief (excluding sub-grounds).
these reasons and in light of the Barker factors,
the Court rejects Petitioner's objections and argument
that the Proposed Findings and Recommendations are erroneous,
and the Court finds no reason to waive the exhaustion
requirement. In fact, according to Respondent David Ballard,
a hearing on the state habeas petition is scheduled to occur
in the Circuit Court of Putnam County on August 7, 2017.
Moreover, if unsuccessful in state court, Petitioner will
have time to file a petition pursuant to § 2254 after
the state proceedings conclude, and the Court finds no reason
this action should be stayed pending the state court
decision. See Proposed Findings and Recommendations,
at 30-33 (explaining that Petitioner, if he chooses, will
have time to file a federal habeas petition following the
completion of the state proceedings).
the Court DENIES Petitioner's “Motion to Waive
Exhaustion Requirement” (ECF No. 3), DENIES his
“Motion to Stay and Abeyance” (ECF No. 16),
DENIES his objections to the Proposed Findings and
Recommendations (ECF No. 23), ACCEPTS AND INCORPORATES HEREIN
the Proposed Findings and Recommendations of the Magistrate
Judge, and DISMISSES this action WITHOUT PREJUDICE from the
docket of the Court.
Court additionally has considered whether to grant a
certificate of appealability. See 28 U.S.C. §
2253(c). A certificate will not be granted unless there is Aa
substantial showing of the denial of a constitutional right.@
Id. at ' 2253(c)(2). The standard is satisfied
only upon a showing that reasonable jurists would find that
any assessment of the constitutional claims by this Court is
debatable or wrong and that any dispositive procedural ruling
is likewise debatable. Miller-El v. Cockrell, 537
U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84
(4th Cir. 2001). The Court concludes that the governing
standard is not satisfied in this instance. Accordingly, the
Court DENIES a certificate of appealability.
Court DIRECTS the Clerk to send a copy of this Order to
Magistrate Judge Aboulhosn, counsel of record, and any
Petitioner's motion to stay the
action and hold it in abeyance is included in his Reply to
Respondent's Response in opposition to a waiver of the
If no action is being taken on his
state habeas corpus proceeding, Petitioner alternatively
requests his objections to the Proposed Findings and
Recommendations be sustained and exhaustion be
In Barker, the Supreme Court
held a court should consider the “[l]ength of delay,
the reason for the delay, the defendant's assertion of
his right, and prejudice to the defendant.” 407 U.S. at
530 (footnote omitted). In United States v. Johnson,
732 F.2d 379 (4th Cir. 1984), the Fourth Circuit held these