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Widmyer v. Ballard

United States District Court, N.D. West Virginia

March 28, 2018

DAVID BALLARD, Warden, Respondent.



         Pending for review is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Dkt. No. 1) filed by the pro se petitioner, William Tampas Widmyer (“Widmyer”), together with a motion for summary judgment filed by the respondent, Warden David Ballard (“Ballard”) (Dkt. No. 88). Also pending is the Report and Recommendation (“R&R”) of the Honorable James E. Seibert, United States Magistrate Judge, recommending that the Court grant Ballard's motion and deny and dismiss Widmyer's petition with prejudice (Dkt. No. 105).

         For the reasons that follow, the Court ADOPTS the R&R (Dkt. No. 105), GRANTS the motion for summary judgment (Dkt. No. 88), DENIES the petition (Dkt. No. 1), and DISMISSES the case WITH PREJUDICE.

         I. BACKGROUND

         A. Criminal Trial and Direct Appeal

         On January 20, 1999, a grand jury in Jefferson County, West Virginia returned a six-count indictment, charging Widmyer with (1) murder in the first degree, (2) malicious assault, (3) destruction of property, (4) breaking and entering, (5) petit larceny, and (6) possessing any vehicle knowing it to be stolen. Following a two-day jury trial, Widmyer was convicted of all charges on July 22, 1999 (Dkt. No. 88-5).

         On August 30, 1999, the Circuit Court of Jefferson County (“Circuit Court”) sentenced Widmyer to life without the possibility of parole (Dkt. No. 13-2). Widmyer timely filed a petition for appeal (Dkt. No. 88-10), which the Supreme Court of Appeals of West Virginia (“Supreme Court of Appeals”) refused on November 1, 2000 (Dkt. No. 88-11). Widmyer did not file a petition for writ of certiorari with the Supreme Court of the United States.

         B. Post-Conviction Proceedings

         1. State Habeas Corpus

         On February 16, 2001, Widmyer filed a petition for post-conviction relief (“state habeas”) in the Circuit Court (Dkt. No. 88-12), which denied the petition nearly five years later, on January 3, 2006 (Dkt. No. 18-20). Thereafter, on February 6, 2006, the Circuit Court appointed counsel to perfect an appeal of this denial to the Supreme Court of Appeals. On September 4, 2009, counsel filed a motion to file an appeal out of the time, seeking to appeal the denial of Widmyer's habeas petition nearly four years late. Although the Supreme Court of Appeals granted the motion, it ultimately refused Widmyer's petition for appeal on February 11, 2010 (Dkt. Nos. 88-21; 14-3).

         2. § 2254 Petition

         Nearly ten years after his convictions in state court, Widmyer filed his § 2254 Petition (“Petition”) in this Court on February 24, 2010 (Dkt. No. 1), asserting fourteen (14) various grounds for relief. Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred the Petition to the magistrate judge for initial review. On July 22, 2010, Ballad moved to dismiss the Petition as both untimely and also barred for failure to exhaust available state remedies (Dkt. No. 13).

         In an R&R entered on October 20, 2010, the magistrate judge recommended that the Court deny and dismiss the Petition as untimely (Dkt. No. 22). The Court rejected that recommendation on February 23, 2011, concluding that Widmyer was entitled to equitable tolling of the statute of limitations and, thus, that his Petition had been timely filed (Dkt. No. 25). The Court further found that, while timely, the Petition included claims for relief not previously presented to the courts of West Virginia. It therefore stayed Widmyer's § 2254 Petition while he exhausted his claims in state court. Id.

         3. State Proceedings Following Stay

         On January 26, 2013, Widmyer, by counsel, filed his second state habeas petition in the Circuit Court (Dkt. No. 88-23). Following an evidentiary hearing “on the limited, threshold issue of whether [Widmyer] knowingly and intelligently waived certain grounds in his initial habeas proceeding, ” the Circuit Court denied relief in a written order entered on March 12, 2014 (Dkt. No. 88-29). On May 15, 2015, the Supreme Court of Appeals affirmed the Circuit Court's decision by memorandum decision (Dkt. No. 88-33).

         4. Reopened § 2254 Petition

         Despite granting a stay in the matter while Widmyer attempted to seek relief for his unexhausted claims in state court, this Court inadvertently dismissed the Petition with prejudice and ordered it stricken on December 10, 2013 (Dkt. No. 65). On June 4, 2015, Widmyer filed a second § 2254 petition indicating that he had fully exhausted all of his state remedies. Thereafter, the Court vacated its prior order dismissing the Petition and ordered the Clerk of Court to reopen this matter (Dkt. No. 73). On May 2, 2017, Ballard answered Widmyer's Petition and also moved for summary judgment (Dkt. Nos. 87; 88).

         In a second Report and Recommendation (“R&R”) entered on February 16, 2018, Magistrate Judge James E. Seibert recommended that the Court grant Ballard's motion for summary judgment and deny and dismiss the Petition with prejudice (Dkt. No. 105). First, the R&R concluded that Widmyer had procedurally defaulted eight (8) of his fourteen (14) claims, specifically Grounds A, B, D, E, F, I, and J, which were unexhausted when he filed the Petition in 2010, as well as Ground N.[1] Id. at 18. Magistrate Judge Seibert further concluded that, while exhausted, Widmyer's six (6) other claims for relief lack merit. Id. at 22.

         The R&R informed Widmyer of his right to file “written objections identifying the portions of the recommendation to which objection is made and the basis for such objections.” Id. at 39. It further warned that the failure to do so may result in waiver of his right to appeal. Id. After receiving an extension of time in which to do so (Dkt. No. 110), Widmyer timely filed his objections to the R&R on March 8, 2018 (Dkt. No. 112).


         A. Pro Se Pleadings

         The Court must liberally construe pro se pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A court may not, however, construct the plaintiff's legal arguments for him, nor should it “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         B. Motion for Summary Judgment

         Summary judgment is appropriate in a habeas corpus proceeding where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” establish that “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), (c)(1)(A); see also Maynard v. Dixon, 943 F.2d 407, 412 (4th Cir. 1991). When ruling on a motion for summary judgment, the Court reviews all the evidence “in the light most favorable” to the nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must avoid weighing the evidence or determining its truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         C. Report and Recommendation

         When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the prisoner does not object.” Dellacirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those portions of a recommendation to which no objection has been ...

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