Summary
emphasizing that West Virginia's first-degree murder statute enumerates three broad categories of first-degree homicide: " murder by poison, lying in wait, imprisonment, starving; by any wilful, deliberate and premeditated killing; in the commission of, or attempt to commit, arson, rape, robbery or burglary"
Summary of this case from Samples v. BallardOpinion
CIVIL ACTION NO. 2:08-cv-00879.
August 25, 2009
ORDER
This is an action for habeas corpus relief under 28 U.S.C. § 2254. Pending are the respondent's Motion for Summary Judgment [Docket 9] and the petitioner's Motion to Dismiss respondent's motion [Docket 12]. The action was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). On May 8, 2009, the Magistrate Judge submitted the findings of fact and recommendation ("PF R") [Docket 15]. The PF R recommended that the court grant the respondent's Motion to Dismiss and deny the petitioner's Motion to Dismiss the respondent's motion. Following the court's order granting the petitioner's Motion for Extension and Enlargement of Time under Rule 6(b) [Docket 17], the petitioner timely filed objections to the PF R on June 8, 2009 [Docket 18].
Having reviewed the petitioner's objections de novo, the court FINDS that they are without merit. Accordingly, the court ACCEPTS and incorporates herein the findings and recommendation of the Magistrate Judge, DENIES the petitioner's Motion to Dismiss the respondent's motion, and GRANTS Defendant's Motion for Summary Judgment.