United States District Court, N.D. West Virginia
STEPHEN D. HERTO, Plaintiff,
JOHN T. MURPHY, Acting Warden, Defendant.
MEMORANDUM OPINION AND ORDER
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
habeas petition was filed pro se by Stephen D.
Herto (“petitioner”) on May 1, 2017, attacking
his conviction in the Circuit Court of Preston County, West
Virginia. ECF No. 1. Simultaneously, petitioner filed a
Motion to Stay and Hold the Petition in Abeyance. Because the
petition was not filed on the court-approved form, petitioner
was issued a Notice of Deficient Pleading. ECF No. 4. On May
8, 2017, petitioner filed his petition on the court-approved
form. ECF No. 7. On May 16, 2017, petitioner filed a Notice
of Change of Address which indicated that he had been
released from incarceration. ECF No. 9. On May 24, 2017,
respondent filed a Response in Opposition to Petitioner's
Motion to Stay. ECF No. 11.
27, 2017, petitioner filed a Notice which indicated that he
wished to withdraw his Motion to Stay and amend his §
2254 petition. In support of his motion, petitioner noted
that he had been paroled and had reviewed respondent's
response to his Motion to Stay and agreed that a stay was not
appropriate. He further noted that he had raised four grounds
in his § 2254 petition: (1) ineffective assistance of
counsel; (2) denial of proper jury instructions; (3)
insufficient evidence for conviction; and (4) confrontational
clause violation. Petitioner conceded that Grounds 1 and 4
were not exhausted. Therefore, he indicated his desire to
proceed with Grounds 2 and 3 which had been exhausted,
withdraw Grounds 1 and 4, and present a petition that had
been fully exhausted. ECF No. 14.
on July 24, 2017, petitioner “withdrew” his
Notice and indicated his desire to stay the petition as
previously requested until the two unexhausted claims were
exhausted. Petitioner explained that he had been notified
that his pending state habeas had been ruled moot and
dismissed under West Virginia law because he was on parole
and no longer in custody. Petitioner noted that he was
appealing that order to the Supreme Court of Appeals of West
Virginia (“SCAWV”). ECF No. 17.
September 19, 2017, this Court granted petitioner's
motion and stayed this action pending the resolution of his
attempt to exhaust his state remedies. Respondent was
directed to provide this Court with a report as to the status
of this case on or before March 15, 2018. ECF No. 23.
September 19, 2017, respondent notified the Court that the
SCAWV had dismissed petitioner's appeal. In its Order,
the SCAWV ruled as follows:
The petitioner was released on parole on May 17, 2017.
“An inmate who has been released from incarceration and
placed on parole is no longer ‘incarcerated under
sentence of imprisonment' for purposes of seeking habeas
relief under the Post-Conviction Habeas Corpus Act, West
Virginia Code §§ 53-4A-1 to -11 (2008).”
ECF No. 24 at 2 (internal citations omitted).
September 20, 2017, this Court entered an order directing the
parties to inform it promptly when and if the order of the
SCAWV would be subject to appeal. ECF No. 25. On September
21, 2017, respondent notified this Court that he did not plan
to file any appeal of the decision of the SCAWV. ECF No. 26.
On October 5, 2017, petitioner filed a notice indicating that
he would not appeal the decision of the SCAWV. ECF No. 29.
Accordingly, on November 17, 2017, this Court vacated the
Report and Recommendation filed by former United States
Magistrate Judge James E. Seibert and recommitted the matter
to the magistrate judge for further proceedings. ECF No. 30.
November 17, 2017, an Order to Show Cause was entered
directing respondent to file an answer to the petition. ECF
No. 33. Following an order granting respondent an enlargement
of time, he filed an answer on February 13, 2018. ECF No. 39.
Respondent addressed the merits of petitioner's claim
regarding jury instructions and sufficiency of the evidence.
However, respondent did not address the merits of
petitioner's claim of ineffective assistance of counsel
or his claim regarding the confrontation clause maintaining
that neither claim was exhausted. More specifically,
respondent alleged that until petitioner had availed himself
of the State writ of error coram nobis, he could not be said
the have exhausted his state remedies. Accordingly,
respondent maintained that this Court should stay
petitioner's § 2254 until he has exhausted his state
remedies by pursuing a writ of error coram nobis.
March 1, 2018, petitioner filed his Reply in which he
disagrees that his Ground 1 (ineffective assistance of
counsel) and Ground 4 (confrontation clause) are not fully
exhausted. Petitioner notes that he raised his ineffective
assistance of counsel claims on direct appeal but the SCAWV
will not hear such claims on direct appeal because an
evidentiary hearing is generally needed to adjudicate claims
of negligent counsel. Petitioner continues by noting that he
raised his ineffective assistance of counsel and
confrontation clause claims in a Writ of Habeas Corpus
pursuant to West Virginia Code § 53-4A-1, which was
mooted without adjudication, upon his being granted parole.
In essence, petitioner maintains that the State of West
Virginia has been given an opportunity to adjudicate all four
of his claims by virtue of his direct appeal and timely
habeas thus satisfying the exhaustion requirements of §
2254, despite the fact that no decision on the merits of
Grounds 1 and 4 have been issued due to the State's
finding that his habeas was mooted by virtue of his parole.
petition for a writ of habeas corpus is not a substitute for
pursuing state judicial remedies. See 28 U.S.C.
2254(b). It is now written in stone that a state prisoner is
required to exhaust his state remedies before he applies for
federal habeas relied. 28 U.S.C. § 2254(b), (c),
Rose v. Lundy, 455 U.S. 509 (1982). Therefore, a
petition for writ of habeas corpus should not be entertained
unless the petitioner has first exhausted his state remedies.
Baldwin v. Reese, 541 U.S. 27, 29 (2004);
Castille v. Peoples, 489 U.S. 346, 349,
reh'g denied, 490 U.S. 1076 (1989). Concerns of
comity dictate that the State must first be afforded a full
and fair opportunity to pass upon and correct the alleged
violation of its prisoner's federal rights. See
Duncan v. Henry, 513 U.S. 364, ...