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Cross v. Pszczolkowski

United States District Court, N.D. West Virginia, Martinsburg

April 8, 2019

JAMES CROSS, JR., Petitioner,


          Gina M. Groh chief united states district judge.

         Pending before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Robert W. Trumble. ECF No. 11. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed R&R. Magistrate Judge Trumble issued his R&R on March 7, 2019. In his R&R, Magistrate Judge Trumble recommends that the Petitioner's § 2254 petition [ECF No. 1] be denied and dismissed with prejudice.

         I. BACKGROUND

         Upon review of the record, the Court finds that the facts as explained in the R&R accurately and succinctly describe the circumstances underlying the Petitioner's claims. The Court incorporates those facts herein. However, outlined below are the most relevant facts of this case.

         Following the Petitioner's state court convictions, a recidivist trial was held to enhance his malicious assault sentence to a life sentence based upon two prior separate felony convictions. Following the trial, the jury found the Petitioner was the same person who previously committed the two felonies. The Court imposed life imprisonment with the possibility of parole for the Petitioner's malicious assault conviction. The West Virginia Supreme Court of Appeals affirmed Petitioner's conviction and sentence, finding, in part, that there was “no error in the court's recidivist sentence.”

         The Petitioner filed a state habeas corpus petition challenging his recidivist life sentence. The Petitioner argued that he was not duly cautioned as required by West Virginia Code § 61-11-19. Berkeley County Circuit Court denied the petition. Petitioner appealed the decision, and the West Virginia Supreme Court of Appeals affirmed. The Supreme Court of Appeals noted that the Petitioner “ignores our pronouncement that ‘the defendant, before he acknowledges his identity as the person who has been previously convicted, must be duly cautioned.'”

         On May 7, 2018, James Cross, Jr. (“Petitioner”) filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In his petition, the Petitioner alleges one ground for relief, specifically that he

was denied due process of law under the Fourteenth Amendment of the U.S. Constitution by the trial court failing to abide by the mandatory requirement of the recidivist statute, W.Va. Code section 61-11-19 C. (Proceedings) Duly Cautioned; by failing to advise Petitioner he had the right to admit, or to deny, or remain silent and have the issue of his identity submitted to a jury.

         The Petitioner requests that his recidivist life sentence be held void.


         Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of the magistrate judge's findings where 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 to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and of a Petitioner's 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).

         Moreover, “[w]hen a party does make objections, but these objections are so general or conclusory that they fail to direct the district court to any specific error by the magistrate judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F.Supp.2d 723, 730 (S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review.” Williams v. New York State Div. of Parole, No. 9:10-CV-1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). Courts have also held that when a party's objection lacks adequate specificity, the party waives that objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that even though a party filed objections to the magistrate judge's R&R, they were not specific enough to preserve the claim for review). Bare statements “devoid of any reference to specific findings or recommendations . . . and unsupported by legal authority, [are] not sufficient.” Mario 313 F.3d at 766. Finally, the Fourth Circuit has long held, “[a]bsent objection, we do not believe that any explanation need be given for adopting [an R&R].” Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no explanation whatsoever is required of the district court when adopting an R&R).

         Objections to Magistrate Judge Trumble's R&R were due within fourteen plus three days of service. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Service was accepted by the pro se Petitioner on March 12, 2019. ECF No. 12. The Petitioner filed his objections on March 25, 2019. ECF No. 13. Accordingly, this Court will review the Petitioner's objections to the R&R de novo. The Court will review the remainder of the R&R for clear error.

         III. ...

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