United States District Court, N.D. West Virginia
KILTON L. KITCHEN, Petitioner,
DAVID BALLARD, Warden, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
32], DENYING RESPONDENT'S MOTION TO DISMISS [DKT. NO.
14], AND GRANTING PETITIONER'S MOTION FOR STAY AND
ABEYANCE [DKT. NO. 29]
M. KEELEY, UNITED STATES DISTRICT JUDGE
August 5, 2016, the pro se petitioner, Kilton L.
Kitchen (“Kitchen”), filed a Petition Under 28
U.S.C. § 2254 for Writ of Habeaus Corpus by a Person in
State Custody (“Petition”) (Dkt. No. 1). In the
Petition, Kitchen claims that his Fifth, Sixth, and
Fourteenth Amendment rights were violated during the course
of his first-degree murder trial in the Circuit Court of
Hampshire County, West Virginia. More particularly, he
asserts grounds for relief regarding ineffective assistance
of counsel, trial court error, perjured testimony,
prosecutorial misconduct, and insufficient evidence.
Id. at 4-8. The five grounds for relief are
comprised of at least eleven discrete claims. Pursuant to 28
U.S.C. § 636 and the local rules, the Court referred
Kitchen's Petition to the Honorable Michael J. Aloi,
United States Magistrate Judge, for initial review.
referral, Magistrate Judge Aloi granted Kitchen's motion
to proceed in forma pauperis (Dkt. No. 5) and
directed the respondent, Warden David Ballard
(“Ballard”), to show cause why the Petition
should not be granted (Dkt. No. 9). After receiving an
extension of time, Ballard moved to dismiss the Petition on
November 14, 2016, arguing that Kitchen had failed to exhaust
his state remedies (Dkt. No. 14). Although he conceded that a
number of Kitchen's claims have been exhausted in state
court, Ballard argued that at least seven of Kitchen's
claims have not been presented to the Supreme Court of
Appeals of West Virginia (Dkt. No. 15 at 9-11). Ballard
therefore maintained that Kitchen had filed a mixed petition
that must be dismissed. Id. at 9.
requested and received two extensions of time in which to
respond to Ballard's motion to dismiss (Dkt. Nos. 20;
23). Kitchen finally responded on March 10, 2017, at which
time he moved for a stay and abeyance in order to fully
exhaust each of his claims in state court (Dkt. Nos. 28; 29).
In support, he averred that, when he filed his Petition, he
believed all of his claims had been exhausted and that the
time to pursue federal relief had nearly expired (Dkt. No. 29
at 2-3). Kitchen now realizes that his state habeas counsel
made several material misrepresentations and omitted claims
from both his state habeas petition and subsequent appeal.
Id. at 3.
Report and Recommendation (“R&R”) entered on
August 3, 2017, Magistrate Judge Aloi recommended that the
Court deny Ballard's motion to dismiss and grant
Kitchen's motion for a stay and abeyance (Dkt. No. 32).
Following a review of Kitchen's state proceedings and the
instant Petition, Magistrate Judge Aloi noted that Kitchen
had not contested that he had filed a mixed petition, which
would usually be dismissed without prejudice for failure to
exhaust. Id. at 9-10. Nonetheless, he reasoned that
Supreme Court precedent allows the district court to grant a
stay and abeyance in limited circumstances when “the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Id. at 11.
Finding that Kitchen had satisfied each of these elements,
Magistrate Judge Aloi recommended that the Court grant a
stay. Id. at 17.
R&R also informed the parties of their right to file
“written objections identifying those portions of the
recommendation to which objections are made and the basis for
such objections.” Id. at 18. It further warned
that the failure to do so may result in waiver of the right
to appeal. Id. Although Ballard received the R&R
through the Court's electronic filing system, and Kitchen
received it on August 8, 2017 (Dkt. No. 33), neither party
has filed any objections to the recommendations.
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
neither party has objected, the Court is under no obligation
to conduct a de novo review. Dellacirprete,
479 F.Supp.2d at 603-04. Therefore, upon review of the
R&R and the record for clear error, the Court adopts the
recommendation of the Magistrate Judge for the reasons
discussed in the R&R (Dkt. No. 32), and in conclusion,
1. ADOPTS the R&R (Dkt. No. 32);
2. DENIES Ballard's Motion to Dismiss for Failure to
Exhaust (Dkt. No. 14);
3. GRANTS Kitchen's Motion for a Stay and Abeyance (Dkt.
4. STAYS the case; and
5. DIRECTS Kitchen to file his unexhausted claims in state
court within 30 days of receipt of this Order; to file
quarterly reports, beginning on January 1, 2018, 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. ...