United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation
(“R&R”) of United States Magistrate Judge
James E. Seibert. Pursuant to this Court's Local Rules,
this action was referred to Magistrate Judge Seibert for
submission of an R&R. Magistrate Judge Seibert issued his
R&R [ECF No. 32] on January 23, 2017. In the R&R, he
recommends that the Respondent's Motion to Dismiss for
Failure to Exhaust [ECF No. 22] be granted and the
Petitioner's 28 U.S.C. § 2254 Petition [ECF No. 1]
be dismissed without prejudice. For the reasons set forth
below, the court ADOPTS Magistrate Judge Seibert's
R&R, GRANTS the Respondent's Motion to Dismiss for
Failure to Exhaust and DISMISSES the Petitioner's §
2254 Petition WITHOUT PREJUDICE.
to Magistrate Judge Seibert's R&R were due within
fourteen days of the Petitioner being served with a copy of
the same. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).
Service was accepted at the Mount Olive Correctional Complex
in Mount Olive, West Virginia, on January 20, 2017. On
February 6, 2017, the Court received the Petitioner's
Motion for an Extension of Time [ECF No. 34]. The Court
granted the motion [ECF No. 36] and extended the deadline to
file objections until February 28, 2017. On February 15,
2017, the Petitioner timely filed his objections to the
R&R [ECF No. 35].
Standard of Review
Court is aware of the Petitioner's pro se
status. Pro se pleadings are held to less stringent
standards than those drafted by licensed attorneys. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Accordingly, the Court construes liberally the
Petitioner's arguments in opposition to the R&R, but
it will not create objections where none exist.
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, objections to a magistrate judge's R&R must
be specific. See Orpiano v. Johnson, 687 F.2d 44, 48
(4th Cir. 1982); see also Parker v. Comm'r of Soc.
Sec., No. 4:11cv00030, 2012 WL 1356593, at *3 (W. D. Va.
Apr. 19, 2012). General objections or mere reiterations of
arguments already presented to the magistrate judge
“have the same effect as a failure to object” and
do not warrant de novo review. Parker, 2012
WL 1356593, at *3 (internal quotations and citation omitted);
see also United States v. Midgette, 478 F.3d 616,
621-22 (4th Cir. 2007); Page v. Lee, 337 F.3d 411,
416 n.3 (4th Cir. 2003). Thus, the Court will review de
novo only those portions of the R&R to which the
Petitioner has made specific objections. The remainder of the
R&R to which “general and conclusory”
objections have been made will be reviewed for clear error.
See McGhee v. Colvin, 6:14-cv-02644-JMC, 2015 WL
5707866, at *1 (Sept. 25, 2015) (internal quotations and
the Petitioner makes just two specific objections to the
R&R. First, he argues Ground One has been “fairly
presented” in state post-conviction proceedings and
should therefore be “deemed exhausted.”
See ECF No. 35 at 4. Second, he contends that he has
“articulated the federal constitutional basis”
for Ground Four and has “afforded the state's
highest court multiple opportunities to vacate the flawed and
arbitrary convictions.” See id. at 15-16.
review, it is apparent the Petitioner first raised the claim
found in Ground One in his third state habeas petition, which
is currently pending on appeal. Although a related ground was
raised in his first state habeas petition, Ground One
presents new factual claims not previously considered by the
highest court of any state. See Breard v. Pruett,
134 F.3d 615, 619 (4th Cir. 1998) (“The exhaustion
requirement is not satisfied if the petitioner presents new
legal theories or factual claims for the first time in his
federal habeas petition.”). In his first state habeas
petition, the Petitioner argued his guilty plea was
involuntarily given because “the prosecuting attorney .
. . encourag[ed] a justifiable belief that the State would
not inform the Court of any prior convictions if a guilty
plea was entered.” ECF No. 11-1 at 60. Ground One, on
the other hand, asserts the Petitioner's “plea of
guilty was not voluntarily, intelligently and knowingly
entered” because “the Court did not make an
explicit finding that [he] knowingly distributed obscene
matter to a minor.” ECF No. 1 at 6. Therefore, because
these claims, albeit related, are factually distinguishable
from one another, the exhaustion requirement is not
regard to Ground Four, the Petitioner admits he has not
raised this claim on direct appeal or in any post-conviction
proceeding. See ECF No. 1 at 14. Upon review of the
record, the Court agrees with this admission. Further, the
Court notes the Petitioner raised no specific objection to
this finding by the Magistrate Judge. Thus, because the
Petitioner still has a potential remedy available in state
court, the exhaustion requirement is not satisfied.
Accordingly, both of the Petitioner's objections are
remainder of the Petitioner's arguments are, in some
form, reiterations of claims or factual scenarios already
presented. Consequently, in the absence of specific
objections, this Court is not required to provide an
explanation for adopting the remaining portions of the
R&R. See McGhee, 2015 WL 5707866, at *2.
upon careful review of the R&R, it is the opinion of this
Court that Magistrate Judge Seibert's Report and
Recommendation [ECF No. 32] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated therein.
Accordingly, the Court GRANTS the Respondent's Motion to
Dismiss for Failure to Exhaust [ECF No. 22] and DISMISSES the
Petitioner's 28 U.S.C. § 2254 Petition [ECF No. 1]
Clerk is DIRECTED to strike this matter from the Court's
active docket, enter a separate judgment in favor of the
Respondent, and transmit a copy of this Order to the pro
se Petitioner by certified mail, return ...