United States District Court, N.D. West Virginia
THOMAS A. GRANTHAM, JR., Petitioner,
DAVID BALLARD, Warden, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 27] AND STAYING CASE
M. KEELEY UNITED STATES DISTRICT JUDGE
25, 2017, the pro se petitioner, Thomas A. Grantham,
Jr. (“Grantham”), filed the pending Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (“Petition”), seeking
collateral review of his convictions in the Circuit Court of
Berkeley County, West Virginia, for second-degree murder,
attempted second-degree murder, and malicious assault (Dkt.
No. 1). In the Petition, Grantham presents five grounds for
relief: 1) his counsel was ineffective, 2) the jury was not
impartial, 3) his case should have been severed, 4) the trial
court gave an erroneous jury instruction regarding concerted
action, and 5) cumulative error resulted in the violation of
his due process rights. Id. at 6-19. Pursuant to 28
U.S.C. § 636 and the local rules, the Court referred the
Petition to the Honorable Michael J. Aloi, United States
Magistrate Judge, for initial review.
August 4, 2017, the respondent, Warden David Ballard
(“Ballard”), moved for judgment on the pleadings,
contending that Grantham failed to exhaust two of his grounds
for relief in state court (Dkt. No. 22). More particularly,
Ballard argued that Grantham's ineffective assistance of
counsel claim was dismissed solely on the basis of state law,
and that Grantham failed to present his cumulative error
claim to the Supreme Court of Appeals (Dkt. No. 23 at 4-7).
Noting that Grantham had filed a “mixed petition,
” Ballard asked the Court to dismiss the Petition
without prejudice so that Grantham “may pursue and
exhaust his available state remedies.” Id. at
7. In response, Grantham agreed that he had filed a mixed
petition and asked the Court to dismiss his Petition without
prejudice and order the state court to entertain and
adjudicate his unexhausted claims (Dkt. No. 26 at 2-4).
Report and Recommendation (“R&R”) entered on
January 16, 2018, Magistrate Judge Aloi reasoned that
Grantham had only exhausted his second ground for relief, the
claim that he was deprived of an impartial jury (Dkt. No. 27
at 18-19). Grounds One, Three, and Four present different
legal theories than squarely presented on appeal to West
Virginia's highest court, while Ground Five was not
raised at all to the Supreme Court of Appeals. Id.
at 19-21. Acknowledging that dismissing Grantham's
Petition without prejudice would bar further review under
§ 2254 due to the one-year limitation under the
Anti-Terrorism and Effective Death Penalty Act, Magistrate
Judge Aloi reasoned that Grantham qualifies instead for a
stay and abeyance. Id. at 22-28. Therefore, the
R&R recommended that the Court grant Ballard's motion
and dismiss the Petition unless Grantham elected to either
sever his unexhausted claims or consent to a stay and
abeyance while he exhausts his claims in state court.
Id. at 28-29.
R&R also informed Grantham of his right to file
“written objections identifying those portions of the
recommendation to which objection is made and the basis for
such objections.” Id. at 29. It further warned
that the failure to do so may result in waiver of the right
to appeal. Id. On January 24, 2018, Grantham filed
his self-styled “Objections and Agreed Option of a Stay
and Abeyance to Report and Recommendation” (Dkt. No.
29). Although styled in part as an objection,  Grantham's
filing elects to have the Court stay the case and hold his
Petition abeyance pending further efforts to exhaust his
claims in state court. Id.
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).
Grantham has not raised any specific objections to Magistrate
Judge Aloi's recommendations, and in fact agrees that the
Court should stay this case and hold the Petition in
abeyance. Because Grantham has not objected, the Court is
under no obligation to conduct a de novo review.
Dellacirprete, 479 F.Supp.2d at 603-04. 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:
ADOPTS the R&R (Dkt. No. 27);
DENIES WITHOUT PREJUDICE Ballard's Motion for
Judgment on the Pleadings (Dkt. No. 22);
DENIES AS MOOT Grantham's Motion for an Order
Directing the State Court to Provide a Hearing and Fully
Adjudicate Petitioner's Ineffective Assistance of Counsel
Claim (Dkt. No. 26);
STAYS the case; and
DIRECTS Grantham to file his unexhausted claims in
state court within 30 days of receipt of this Order; to file
quarterly reports, beginning on April 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.
Court DIRECTS the Clerk to transmit this
Order to counsel of record and to the pro se
petitioner, by ...