United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 105]
M. KEELEY UNITED STATES DISTRICT JUDGE
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).
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.
Criminal Trial and Direct Appeal
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).
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.
State Habeas Corpus
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).
§ 2254 Petition
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.
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.
State Proceedings Following Stay
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.
Reopened § 2254 Petition
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).
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. Id. at 18. Magistrate Judge
Seibert further concluded that, while exhausted,
Widmyer's six (6) other claims for relief lack merit.
Id. at 22.
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).
STANDARDS OF REVIEW
Pro Se Pleadings
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).
Motion for Summary Judgment
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).
Report and Recommendation
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