United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART
REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of a Report and
Recommendation (“R&R”) issued by 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. On
March 20, 2017, Magistrate Judge Seibert issued his R&R,
which recommends that this Court grant the Respondent's
Motion for Summary Judgment [ECF No. 32] and deny and dismiss
with prejudice the Petitioner's 28 U.S.C. § 2254
petition [ECF No. 1].
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 Huttonsville Correctional Center
in Huttonsville, West Virginia, on March 23, 2017. On April
3, 2017, the Petitioner timely filed his objections to the
R&R [ECF No. 55].
18, 2000, in Calhoun County, West Virginia, a jury convicted
the Petitioner on two counts of sexual abuse in the first
degree and two counts of sexual abuse by a custodian. ECF No.
12-1 at 6. The Petitioner filed a notice of intent to appeal,
which was refused by the West Virginia Supreme Court of
Appeals (“WVSCA”) on March 21, 2001. ECF No. 12-2
at 2. Subsequently, the Petitioner filed a pro se
habeas petition in the Circuit Court of Calhoun County [ECF
No. 12-5] on September 27, 2006, which he amended through
appointed counsel on May 12, 2008. See ECF No. 12-6.
January 21, 2014, the circuit court entered a judgment order
granting the Petitioner's amended petition, on the ground
that the Petitioner was denied his right to a fair trial and
due process. ECF No. 12-1 at 19. The state appealed, arguing
“that the Circuit Court erred in its findings as to
application of West Virginia law, or in the very least, in
its conclusion that the facts as contained in Ground Eight
[of the Petitioner's habeas petition] amounted to
anything more than harmless error.” ECF No. 12-7 at 9.
The WVSCA agreed, and it reversed the circuit court's
order. Ballard v. Hunt, 772 S.E.2d 199 ( W.Va.
2015). It reasoned that although the prosecutor's
comments and the expert opinion evidence as to pedophilia
were improper under Rule 404(a) of the West Virginia Rules of
Evidence, the error was harmless given that the state's
evidence overwhelmingly established the Petitioner's
guilt. Id. at 205.
§ 2254 Petition, the Petitioner contends he was denied
due process of law because of the unfair prejudice resulting
from references to him as a pedophile during his trial. ECF
No. 1 at 6. The Petitioner further asserts he was denied
equal protection of the law when the WVSCA ruled that the
expert witness's opinion evidence was inadmissible, but
nevertheless, it denied him a new trial. Id. at
the Respondent argues there is no clearly established federal
law demonstrating that the admission of the expert's
testimony, directly identifying the Petitioner as a
pedophile, is so prejudicial that it constitutes a due
process violation. ECF No. 33 at 7. Moreover, the Respondent
avers that even if the admission of the propensity evidence
constituted a violation of due process, Petitioner is still
not entitled to habeas relief because the admission was
merely harmless error. Id. at 11. The magistrate
judge did not reach these arguments in the R&R because he
found that neither of the Petitioner's claims have been
Standard of Review
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). The 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. 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
Petitioner raises several objections to the R&R. To the
extent the Petitioner raises arguments that direct this Court
to a specific error by the magistrate judge, the Court will
conduct de novo review. See Orpiano, 687
F.2d at 47. However, to the extent the Petitioner's
objections are general or conclusory in nature, or are mere
reiterations of arguments already rejected by the magistrate
judge, the Court is not obligated to conduct de novo
review. McGhee, 2015 WL 5707866, at *1.
the Petitioner objects to the magistrate judge's
recommendation that Grounds Two and Three of his petition be
dismissed as unexhausted because they were not fairly
presented to the WVSCA. More specifically, he contends the
circuit court and the WVSCA were both given the opportunity
to consider, and did in fact consider, whether he was denied
due process as a result of prejudicial statements made by the
prosecutor and expert witness during his trial. This Court
finds that the Petitioner has exhausted ground two of his
petition, regarding whether his due process rights were
violated, because that issue was fairly presented to and
considered by the WVSCA. However, neither the circuit court
nor the WVSCA were given the opportunity to consider the
equal protection claim raised in ground three of the
petition. Therefore, ground three has not been fairly
presented and shall be dismissed for lack of exhaustion.
Accordingly, the Petitioner's objection is
OVERRULED IN PART.
regard to Ground Two, 28 U.S.C. § 2254(d) “bars
relitigation of a claim ‘adjudicated on the merits'
in state court unless, among other exceptions, the earlier
state-court ‘decision' involved ‘an
unreasonable application' of ‘clearly established
Federal law, as determined by' this Court.”
Harrington v. Richter, 562 U.S. 86, 87 (2011)
(quoting 28 U.S.C. § 2254(d)(1)). Even “[w]here
the state-court decision ...