United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. Groh chief united states district judge.
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.
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.
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.”
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
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.
Petitioner requests that his recidivist life sentence be held
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).
“[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).
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.