United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James E. Seibert [Doc. 31]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Seibert for submission of a proposed report
and recommendation ("R&R"). Magistrate Judge
Seibert filed his R&R on February 8, 2018, wherein he
recommends this Court grant Respondent's Motion to
Dismiss as Unexhausted and Procedurally Barred [Doc. 16] and
dismiss with prejudice petitioner's § 2254 Petition
[Doc. 1]. However, Magistrate Judge Seibert further
recommends that petitioner be afforded the opportunity to
withdraw his procedurally defaulted claims and proceed on his
double jeopardy claim, which has been exhausted.
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, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Seibert's R&R were due no later than March 1, 2018.
Petitioner filed his Objections on February 27, 2018 [Doc.
33]. Accordingly, this Court will review the portions of the
R&R to which the petitioner objects under a de
novo standard of review. The remainder of the
R&R will be reviewed for clear error.
describing the relevant facts and procedural history, and
analyzing such with regard to respondent's argument that
petitioner's claims are procedurally defaulted,
Magistrate Judge Seibert found that "[a]side from his
claim of double jeopardy, which was raised in his direct
appeal, Petitioner did not raise any of his other claims for
federal habeas relief until his third state habeas petition,
and in fact, some of his claims were not raised until the
appeal of that third habeas petition" [Doc. 31 at 31].
Magistrate Judge Seibert further found that "Petitioner
has not established, nor even argued, that a fundamental
miscarriage of justice will occur if the defaulted claims are
not addressed on the merits. The undersigned will not
construct Petitioner's arguments opposing procedural
default for him. Therefore, the undersigned concludes that
all of Petitioner's claims are procedurally defaulted,
except his claim that the two counts of sexual assault
(Counts II and IV) involved one continuous act and violates
double jeopardy" [Id. at 33]. Accordingly,
Magistrate Judge Seibert recommended that, Respondent's
Motion to Dismiss [Doc. 16] be granted, and that
petitioner's § 2254 Petition [Doc. 1] be dismissed
as a mixed petition, unless the petitioner was afforded the
opportunity to withdraw his procedurally defaulted claims and
proceed on his one exhausted claim regarding double jeopardy
[Doc. 31 at 34].
Objections, petitioner does not present objections to
Magistrate Judge Seibert's ruling that his claims are
procedurally barred. Nor does petitioner present arguments
that a fundamental miscarriage of justice will occur if the
defaulted claims are not addressed on the merits. Instead,
the vast majority of petitioner's Objections simply
reargue issues petitioner presented in his previous state
habeas petitions and appeals. All that petitioner argues with
respect to Magistrate Judge Seibert's ruling that his
claims are procedurally barred is that there is "an
intervening development in [the] Supreme Court of Appeals of
West Virginia [that] warrants consideration" [Doc. 33 at
"intervening development" petitioner refers to is
his February 6, 2017, Rule 35(a) motion to correct an illegal
sentence [Doc. 16-42], which was denied by the circuit court
on March 21, 2017, [Doc. 16-43], and appealed to the Supreme
Court of Appeals of West Virginia on March 30, 2017 [Doc.
16-44]. That appeal is still pending before the Supreme Court
of Appeals of West Virginia. Therefore, petitioner argues
that "[t]he constitutional claims for relief deem[ed]
unexhausted by Magistrate [Judge] Seibert are clearly before
the [West Virginia] Supreme Court of Appeals on appeal,
" [Doc. 33 at 13], and thus petitioner "asks this
Court to order a stay and abeyance until the [West Virginia]
Supreme Court of Appeals ... issues their ruling"
[Id. at 13-14].
petitioner's assertion, his latest appeal is not an
"intervening development." Petitioner seemingly
believes Magistrate Judge Seibert did not consider his latest
appeal when issuing his R&R, as petitioner states
"[t]he Magistrate Judge's review of post- conviction
proceedings concluded with the decision of the [West Virginia
Supreme Court of Appeals] on February 21, 2017"
[Id. at 1]. While it is true Magistrate Judge
Seibert did not list this latest appeal when he recounted
petitioner's post-conviction proceedings, that does not
mean he did not consider it when issuing his recommendation,
and the appeal is certainly not "intervening."
While petitioner's latest appeal was filed after the
present federal habeas petition, it was only filed a few
weeks after, and was part of the record before Magistrate
Judge Seibert for review [Doc. 16-44].
this Court believes it is clear Magistrate Judge Seibert did
not simply ignore petitioner's latest appeal, as
petitioner suggests, ultimately it is irrelevant. As
Magistrate Judge Seibert explained:
Today, when presented with a mixed petition, the Court
ordinarily issues a stay and abeyance to allow the petitioner
to return to state court and exhaust the claims which are
unexhausted. However, in the instant case, given the finding
of procedural default, it would be futile to grant a stay,
because Petitioner clearly is precluded from returning to
state court to exhaust the claims presented in addition to
his double jeopardy claim.
[Doc. 31 at 34]. This Court agrees, and finds that it would
be futile to grant the stay petitioner requests. This is
particularly evident by the fact that the circuit court's
denial of petitioner's Rule 35(a) motion, the appeal of
which being the grounds petitioner now requests a stay, was
because of procedural default [Doc. 16-43 at 5].
petitioner states "[i]f the Court finds that [the]
current petition for appeal.. . does not require the
Magistrate Judge's findings to be modified or amended,
petitioner will agree to withdraw his procedurally defaulted
claims and will pursue the double jeopardy claim with respect
to Counts II and IV as being duplicitous as to Count [i] of
the indictment" [Doc. 33 at 16]. Thus, instead of facing
dismissal of his entire petition, petitioner has elected to
withdraw his unexhausted and procedurally defaulted claims
and proceed only with regard to the one exhausted claim of
upon careful review of the record, it is the opinion of this
Court that Magistrate Judge Seibert's Report and
Recommendation [Doc. 31] should be, and is,
hereby ORDERED ADOPTED for the reasons more
fully stated in the report. Accordingly, this Court
ORDERS that the Respondent's Motion to
Dismiss as Unexhausted and Procedurally Barred [Doc.
16], is hereby GRANTED IN PART and
the unexhausted claims in the petitioner's § 2254
Petition [Doc. 1] are hereby
DISMISSED WITH PREJUDICE. Further, this
matter is hereby RECOMMITTED to the
magistrate judge with instruction to issue a new R&R
regarding petitioner's remaining claim of double
final matter, upon an independent review of the record, this
Court hereby DENIES a certificate of
appealability, finding that the petitioner has failed to make
"a substantial showing of the denial of a ...