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Herto v. Murphy

United States District Court, N.D. West Virginia

November 7, 2019

STEPHEN D. HERTO, Plaintiff,
JOHN T. MURPHY, Acting Warden, Defendant.



         I. Background

         This habeas petition was filed pro se[1] 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.

         On June 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.

         However, 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.

         On 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.

         On 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).

         On 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[2] filed by former United States Magistrate Judge James E. Seibert and recommitted the matter to the magistrate judge for further proceedings. ECF No. 30.

         On 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.

         On 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.

         II. Discussion

         A 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, ...

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