Boothe v. Ballard

Boothe v. Ballard

Plaintiff:	Scotty E. Boothe
Defendant:	David Ballard
Case Number:	2:2014cv25165
Filed:	August 28, 2014
Court:	US District Court for the Southern District of West Virginia
Office:	Charleston Office
County:	Fayette
Presiding Judge:	Thomas E. Johnston
Presiding Judge:	Cheryl A. Eifert
Nature of Suit:	General
Cause of Action:	28 U.S.C. § 2254
Jury Demanded By:	None

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Date Filed	Document Text
March 31, 2016	Filing 23 MEMORANDUM OPINION AND ORDER the Court OVERRULES the 22 Objections, ADOPTS the 21 Proposed Findings and Recommendation to the extent it is consistent with this Memorandum Opinion and Order, GRANTS Respondent's 10 MOTION for Summary Judgmen t, DENIES the 2 Petition in its entirety, AFFIRMS the Magistrate Judge's denial of the 15 Motion for Hearing and Appointment of Counsel, and DISMISSSES this case WITH PREJUDICE. The Court GRANTS a certificate of appealability as to the foll owing question: "Under West Virginia Code § 53-4A-1(c), may a court apply the statutory rebuttable presumption in favor of a knowing and intelligent waiver of certain claims if the petitioner was represented by counsel during the applicable proceedings and fails to argue that the waiver was not voluntary, or must the record nonetheless conclusively demonstrate that the waiver was not voluntary before a court may find that the petitioner waived certain claims?" The Court further DE NIES a certificate of appealability as to the remaining findings and rulings in this Opinion. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254, Petitioner may not appeal the Court's denial of a certificate of appealability, but he may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. The Court DIRECTS the Clerk to remove this action from the Court's docket. Signed by Judge Thomas E. Johnston on 3/31/2016. (cc: counsel of record and any unrepresented party) (skh)

Date Filed

Document Text

March 31, 2016

Filing 23 MEMORANDUM OPINION AND ORDER the Court OVERRULES the 22 Objections, ADOPTS the 21 Proposed Findings and Recommendation to the extent it is consistent with this Memorandum Opinion and Order, GRANTS Respondent's 10 MOTION for Summary Judgmen t, DENIES the 2 Petition in its entirety, AFFIRMS the Magistrate Judge's denial of the 15 Motion for Hearing and Appointment of Counsel, and DISMISSSES this case WITH PREJUDICE. The Court GRANTS a certificate of appealability as to the foll owing question: "Under West Virginia Code § 53-4A-1(c), may a court apply the statutory rebuttable presumption in favor of a knowing and intelligent waiver of certain claims if the petitioner was represented by counsel during the applicable proceedings and fails to argue that the waiver was not voluntary, or must the record nonetheless conclusively demonstrate that the waiver was not voluntary before a court may find that the petitioner waived certain claims?" The Court further DE NIES a certificate of appealability as to the remaining findings and rulings in this Opinion. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254, Petitioner may not appeal the Court's denial of a certificate of appealability, but he may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. The Court DIRECTS the Clerk to remove this action from the Court's docket. Signed by Judge Thomas E. Johnston on 3/31/2016. (cc: counsel of record and any unrepresented party) (skh)

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Plaintiff: Scotty E. Boothe
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Defendant: David Ballard
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