United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
Standing Order, this matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendations (“PF&R”) for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc.
Judge Aboulhosn submitted to the court his PF&R on
October 24, 2018, in which he recommended that the court deny
petitioner's “Motion for Leave to File Amended
Complaint” (ECF No. 11), grant respondent's
“Motion to Dismiss for Lack of Jurisdiction” (ECF
No. 20), Deny as moot petitioner's “Motion to Reset
Federal Clock or Timelines” (ECF NO. 12), and remove
this matter form the court's docket.
accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to
Magistrate Judge Aboulhosn's PF&R. The failure of any
party to file such objections within the time allotted
constitutes a waiver of such party's right to a de
novo review by this court. Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989). The petitioner filed a number
of motions after the magistrate judge submitted his proposed
findings and recommendations: Motion to Appeal Magistrate
Omar Aboulhosn Recommendation (ECF NO. 29), Motion to Obtain
Transcripts (ECF NO. 30), Motion to Obtain Statement (ECF No.
31), and Prayer of Relief (ECF No. 32). Based upon the
petitioner's timely filing of these motions within the
requisite time for filing objections to the PF&R and
based upon the subject of the motions, the court construes
these motions as objections to the magistrate judge's
PF&R. The court reviews the petitioner's objections
instant matter refers to the petitioner's Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus.
proposed findings and recommendations, the magistrate judge
thoroughly laid out the procedural history of the
petitioner's relevant criminal cases and subsequent
Habeas Corpus Petitions before the court. The background of
the petitioner's petition is as follows:
Criminal Action No. 92-F-77:
August 27, 1992, petitioner was convicted of six counts of
first-degree sexual assault, three counts of third- degree
sexual assault, and three counts of child abuse by a parent.
State v. Redden, No. 92-F-77; (Document No. 3-6, p.
3.). Petitioner appealed his convictions to the Supreme Court
of Appeals of West Virginia [“WVSCA”].
Petitioner's direct appeal was refused by the WVSCA on
October 6, 1993. State v. Redden, 194 W.Va. 364, 460
S.E.2d 499 (1995). Petitioner did not file a Petition for
Writ of Certiorari in the United States Supreme Court.
First State Habeas Proceeding:
November 1993, petitioner filed a Petition for Writ of Habeas
Corpus in the Circuit Court of Mercer County with respect to
his conviction in No. 92-F-77. Redden v. Trent,
Civil Action No. 93-1656 (Cir. Ct. Mercer, March 10, 1994);
(Document No. 3-6, p. 3). By Order of March 10, 1994, the
Circuit Court of Mercer County denied petitioner's habeas
petition. Id. Petitioner appealed to the WVSCA
alleging various errors including ineffective assistance of
counsel and insufficient funding of the Public Defender's
Office. See Redden v. Trent, No. 22703 (W.Va. July
17, 1995). On July 17, 1995, the WVSCA issued an opinion
affirming the decision of the Circuit Court of Mercer County.
First Section 2254 Petition:
December 13, 2005, petitioner, proceeding pro se, filed his
first Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus By a Person in State Custody. Redden v.
McBride, Civil Action No. 1:05-1147 (S.D. W.Va. Aug. 1,
2006), (Document No. 1). In his Petition, petitioner
challenged the validity of the sexual assault convictions
obtain against him in two separate cases in the Circuit Court
of Mercer County (Nos. 92-F-77 and 95-F-153). Id. By
Proposed Findings and Recommendation entered on June 28,
2006, United States Magistrate Judge R. Clarke VanDervort
recommended that petitioner's Section 2254 Petition be
denied as untimely. Id., (Document No. 7).
Petitioner filed his Objections on July 3, 2006.
Id., Document No. 8. By Memorandum Opinion and Order
entered on August 1, 2006, United States District Judge David
A. Faber overruled petitioner's Objections, adopted Judge