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Jenkins v. Plumley

United States District Court, N.D. West Virginia

March 23, 2017

ROSS JENKINS, Petitioner,
v.
MARVIN PLUMLEY, Respondent.

         MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION FOR LEAVE TO AMEND THE PETITION, DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE, DENYING PETITIONER'S MOTION TO STRIKE, OVERRULING RESPONDENT'S OBJECTIONS, OVERRULING PETITIONER'S OBJECTIONS, DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART § 2254 PETITION

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         The petitioner, Ross Jenkins (“Jenkins”), filed this pro se[1] petition under 28 U.S.C. § 2254 challenging the validity of his West Virginia sentence. This matter was referred to United States Magistrate Judge James E. Seibert under Local Rule of Civil Procedure 72.01. The respondent (“the state”) filed a motion for summary judgment. Magistrate Judge Seibert entered a report recommending that the state's motion for summary judgment be denied and that Jenkins's petition be granted. The state and Jenkins each filed timely objections. For the following reasons, the magistrate judge's report and recommendation is adopted and affirmed, the parties' objections are overruled, the state's motion for summary judgment is denied, and Jenkins's petition is granted.

         I. Background

         In 1995, Jenkins was convicted of one count of breaking and entering in violation of West Virginia Code § 61-3-11(a) and two counts of second-degree sexual assault in violation of West Virginia Code § 61-8B-4. The state then filed an information under West Virginia Code §§ 61-11-18 and 61-11-19 to designate Jenkins as a recidivist based on his having been convicted of two prior felonies, permitting the imposition of a life sentence. A jury determined that he was a recidivist under the statute.

         At sentencing on February 16, 1996, the state requested that Jenkins receive a life sentence for each of his three convictions to run consecutively. The court then sentenced Jenkins to a term of one to fifteen years as to the burglary and ten to twenty-five years as to each sexual assault to run consecutively. The court also separately sentenced Jenkins to a life sentence under the recidivist statute. The state then requested clarification from the court regarding whether the single life sentence applied to all three convictions as a unit, and the court stated that it was required to do so by the recidivist statute. The state then sought leave to withdraw the recidivist information, noting that on a single life sentence, Jenkins would be eligible for parole after fifteen years, while he would be eligible for parole only after twenty-one years if each of his individual sentences were to run concurrently. The court granted the motion and sentenced Jenkins to a term of one to fifteen years as to the burglary and ten to twenty-five years as to each sexual assault to run consecutively, a total sentence of twenty-one to sixty-five years.

         On November 21, 2012, Jenkins filed a pro se motion with the state court to correct his sentence, arguing that the sentencing court erred in granting the state's motion to withdraw the recidivist information. In effect, Jenkins sought to have the court impose a single life sentence as to all counts, making him immediately eligible for parole. The court appointed counsel to represent Jenkins in those proceedings. The court concluded that the recidivist statute must be applied to enhance one of the counts of conviction and that the other two counts would remain as separate sentences. Although Jenkins was represented by counsel at the hearing, he made pro se arguments to the court and requested that the court impose a single life sentence as to all counts as the sentencing court originally intended before dismissing the recidivist information. The court denied this request and attempted to advise Jenkins of the lengths of each sentencing option and asked him “do you want me to correct the sentences and sentence you to twenty-six to forty, or do you want me to keep the twenty-one to sixty-five?” ECF No. 1-4 at 13-14. Jenkins then said “I'll take the twenty-six to forty.” Id. The court then resentenced Jenkins to twenty-six years to life.

         Jenkins appealed his resentencing, arguing that his new sentence violated the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States via the Due Process Clause of the Fourteenth Amendment. The West Virginia Supreme Court of Appeals affirmed the new sentence, concluding that Jenkins's original sentence violated the recidivist statute and that his new sentence complied with the statute. Jenkins also filed a habeas petition in West Virginia court alleging ineffective assistance of counsel at his resentencing hearing and violations of double jeopardy. The petition was denied, Jenkins appealed, and the West Virginia Supreme Court of Appeals affirmed.

         Jenkins then filed this petition under § 2254 alleging that his new sentence violates double jeopardy and that he had ineffective assistance of counsel at resentencing. The state filed a motion for summary judgment. Jenkins also filed a motion for leave to amend his petition, which the state opposes. Magistrate Judge Seibert then entered a report recommending that the state's motion for summary judgment be denied and that Jenkins's petition be granted as to the ineffective assistance of counsel claim. Magistrate Judge Seibert did not make a recommendation as to the double jeopardy issue. The state and Jenkins then filed timely objections to the report and recommendation.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which objection is timely made. Because the parties each filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. As to those findings to which objections were not filed, those findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

         Under Federal Rule of Civil Procedure 56, this Court must grant a party's motion for summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Id. If the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ” summary judgment must be granted against that party. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex, 477 U.S. at 322-23. “The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact.” Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992). However, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Moreover, “[t]he nonmoving party cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (internal quotation marks omitted). The nonmoving ...


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