United States District Court, N.D. West Virginia
LETCHER L. McKENNEY, II, Plaintiff,
PATRICK MIRANDY, Warden, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DENYING AND
DISMISSING PLAINTIFF'S PETITION
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, an inmate at Saint Marys
Correctional Center, filed this petition for habeas corpus
under 28 U.S.C. § 2254 challenging decisions made by the
Circuit Court of Barbour County, West Virginia. ECF No. 1.
The petitioner entered a guilty plea in that court to one
count of sexual abuse by a guardian or custodian and three
counts of third degree sexual assault, and was sentenced to a
total of 13 to 35 years. ECF No. 1 at 2.
amended petition for habeas corpus, the petitioner raises six
ground for relief. The grounds for relief are as follows: (1)
denial of motion for production of documents needed to
perfect habeas corpus claim; (2) ineffective assistance of
counsel, including forcing petitioner to enter a guilty plea;
(3) that he was questioned by police after requesting counsel
and was coerced into a confession; (4) questions as to his
competency to stand trial; (5) that prior to entering a
guilty plea, his attorney had not properly advised him as to
the length of a potential sentence or about supervised
release; and (6) bias on the part of the trial
judge. ECF No. 6 at 6-19.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge Michael John Aloi. The magistrate judge then
entered a report and recommendation. ECF No. 12. In that
recommendation, the magistrate judge recommended that the
petitioner's § 2254 petition be denied and dismissed
because it is untimely and because the petitioner has not
exhausted his state remedies. ECF No. 12 at 8. In finding the
petition untimely, the magistrate judge noted that, under the
Anti-Terrorism and Effective Death Penalty Act of 1996, the
petitioner had until January 4, 2010 to either file a habeas
corpus petition or to otherwise toll the statute of
limitations. ECF No. 12 at 3, 5. The petitioner filed a state
habeas corpus petition on July 12, 2013. ECF No. 1-2 at 4.
The petitioner filed the instant petition on August 1, 2016.
ECF No. 1. Thus, the magistrate judge found that the
petitioner did not timely file a petition or provide evidence
that would constitute equitable tolling or other
circumstances set forth in 28 U.S.C. § 2244(d)(1).
the magistrate judge found that, even if the petition were
deemed timely, the petitioner has not exhausted his state
remedies. ECF No. 12 at 7. The petitioner did not directly
appeal his conviction and sentence, nor did he appeal the
denial of his state habeas corpus petition. ECF No. 12 at
magistrate judge advised the parties that, pursuant to 28
U.S.C. § 636(b)(1)(C), any party may file written
objections to his proposed findings and recommendations
within 14 days after being served a copy of the report and
recommendation. Neither party filed any objections to the
report and recommendation.
reasons set forth below, the report and recommendation of the
magistrate judge is affirmed and adopted, and, accordingly,
the amended petition is denied and dismissed.
to 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 no objections were filed, all findings and
recommendations will be upheld unless they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A). As the Supreme Court of the United States
stated in United States v. United States Gypsum Co.,
“a finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 333 U.S.
364, 395 (1948).
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge correctly held the pro se petition
to less stringent standards than those complaints drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the magistrate judge correctly determined
that the petition was not timely filed.
petitioner has one year to file a federal habeas corpus
petition. 28 U.S.C. § 2244(d). In particular, that
one-year limitation period runs from the latest of the
following dates: (1) when the petitioner's judgment
became final; (2) when the State action that prevented the
petitioner from filing his or her petition was removed; (3)
the date on which the Supreme Court of the United States
recognized a new constitutional right and makes that right
retroactively applicable on collateral review; or (4)
“the date on which the factual predicate of the claim .
. . presented could have been discovered through the exercise
of due diligence.” § 2244(d)(1)(A-D). Here, the
magistrate judge correctly found that the limitation period
began on January 4, 2010, one year after the petitioner's
judgment became final. ECF No. 12 at 4. Thus, the petition,
filed on August 1, 2016, is not timely.
this Court agrees with the magistrate judge that even if the
petition were deemed timely, the petitioner has not exhausted
state remedies. ECF No. 12 at 7. In order to exhaust state
remedies, a state prisoner “must give the state courts
one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Because the
petitioner did not appeal his conviction or the denial of his