United States District Court, S.D. West Virginia, Bluefield
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 from 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. 95-F-153:
January 17, 1996, petitioner was convicted of first-degree
sexual assault. State v. Redden, No. 95-F-153;
(Document No. 3-6, p. 3.). Petitioner appealed his conviction
to the Supreme Court of Appeals of West Virginia
(“WVSCA”) arguing that the Circuit Court erred in
finding that petitioner knowingly, intelligently, and
voluntarily waived his right to a jury trial. On May 29,
1997, the WVSCA issued an opinion affirming the decision of
the Circuit Court of Mercer County. State v. Redden,
199 W.Va. 660, 487 S.E.2d 318 (1997). Petitioner did not file
a Petition for Writ of Certiorari in the United States
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
obtained 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
VanDervort's recommendation, and dismissed
petitioner's Section 2254 Petition as untimely.
Id., (Document No. 9); Redden v. McBride,
2006 WL 2189727 (S.D. W.Va. Aug. 1, 2006). Petitioner did not
file an appeal with the Fourth Circuit Court of Appeals.
First State Habeas Petition:
2008, Petitioner filed his first State habeas petition
raising errors related to both his 1992 and 1996 convictions.
(Document No. 11-2). Specifically, petitioner alleged the
following grounds of error: (1) ineffective assistance of
trial counsel; (2) the trial court improperly admitted 404(b)
evidence; (3) ineffective assistance of appellate counsel;
(4) denial of a jury trial; (5) failure of counsel to take an
appeal; (6) defects in the indictment; (7) claims concerning
use of informers to convict; and (8) sufficiency of evidence.
Id. After conducting an omnibus hearing, the Circuit
Court denied petitioner's habeas petition on December 16,
2010. Id. Petitioner appealed the Circuit
Court's decision. (Document Nos. 11-2, 11-3, 11-4, and