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Gray v. Terry

United States District Court, N.D. West Virginia

February 13, 2019

ROSSI ANTHONY GRAY, JR., Petitioner,
v.
RALPH TERRY, Superintendent, Mount Olive Correctional Complex, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY UNITED-STATES DISTRICT JUDGE

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Robert W. Trumble [Doc. 64]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Trumble filed his R&R on January 17, 2019, wherein he recommends this Court grant respondent's Motion for Summary Judgment [Doc. 49] and dismiss with prejudice petitioner's § 2254 Petition [Doc. 1].

         Pursuant 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). Petitioner timely filed his Objections on February 1, 2019 [Doc. 64-1]. 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.

         BACKGROUND

         A detailed factual and procedural background is provided in Magistrate Judge Trumble's R&R [Doc. 64], as well as in the previous R&R of former Magistrate Judge James E. Seibert [Doc. 31]. As the petitioner has not objected to these recitations of the factual background and procedural history, rather than reiterating such in great detail again, this Court will only briefly summarize that which is most relevant.

         On March 6, 2017, petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. 1] which asserted four grounds for relief. On June 2, 2017, respondent filed his response together with a Motion to Dismiss as Unexhausted and Procedurally Barred [Doc. 16]. On February 8, 2018, Magistrate Judge Seibert issued an R&R in which he concluded that only one of the petitioner's claims was exhausted, and that the others were procedurally defaulted [Doc. 31]. Thus, Magistrate Judge Seibert recommended that the respondent's Motion to Dismiss as Unexhausted and Procedurally Barred be granted, and the Petition be dismissed with prejudice, unless the petitioner withdrew his defaulted claims and proceeded on his one exhausted claim.

         On February 27, 2018, petitioner filed objections to Magistrate Judge Seibert's R&R [Doc. 33], in which he noted his agreement to withdraw his procedurally defaulted claims.

         Accordingly, on March 14, 2018, this Court granted in part respondent's Motion to Dismiss as Unexhausted and Procedurally Barred, and the unexhausted claims in the Petition were dismissed with prejudice. This matter was then recommitted with instruction to issue a new R&R regarding petitioner's one remaining claim, which is based on double jeopardy.

         On January 10, 2005, the Ohio County Grand Jury indicted petitioner on the following charges:

(1) Count I-“sexual assault in the second degree” for his sexual intrusion of the victim with the fingers of his left hand in violation of W.Va. Code § 61-8B-4(a)(1);
(2) Count II-“sexual assault in the second degree” for his sexual intrusion of the victim with the fingers of his right hand in violation of W.Va. Code § 61-8B-4(a)(1);
(3) Count III-“sexual abuse in the first degree” for his sexual contact of the victim with his left hand in violation of West Virginia Code § 61-8B-7(a)(3);
(4) Count IV-“sexual abuse in the first degree” for his sexual contact of the victim with his right hand in violation of West Virginia Code § 61-8B-7(a)(3);
(5) Count V-“sexual abuse in the first degree” for his sexual contact with the victim's breasts in violation of West Virginia Code § 61-8B-7(a)(3).[1]

See [Doc. 16-1]. Petitioner's double jeopardy claim is based upon his assertion that Count II is duplicitous of Count I, and that Count IV is duplicitous of Count III.

         At the beginning of trial on September 8, 2005, petitioner's trial counsel moved the circuit court to dismiss Count II and Count IV of the indictment, arguing that under State v. Rummer, 189 W.Va. 369, 432 S.E.2d 39 (1993), petitioner's acts of touching the victim's vagina ...


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