United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
petitioner, Leonard Braynen, Jr. (“Braynen”),
filed this pro se petition under 28 U.S.C. § 2254
arguing that he is being held in state custody in violation
of the Constitution or laws or treaties of the United States.
The respondent filed an answer requesting that the Court deny
petitioner's requested relief and dismiss the petition
with prejudice as petitioner has not demonstrated that his
continued incarceration violates clearly established federal
law. ECF No. 27 at 30. Petitioner filed a response to
respondent's answer to the petition. ECF No. 34.
matter was referred to United States Magistrate Judge Robert
W. Trumble under Local Rule of Prisoner Litigation and
Procedure 2. ECF No. 11. The magistrate judge issued a report
recommending that this Court deny and dismiss the petition
with prejudice. Petitioner Braynen did not file objections to
the report and recommendation. For the following reasons,
this Court adopts and affirms the report and recommendation
in its entirety and denies the petition.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because petitioner did not file any objections to the report
and recommendation, the magistrate judge's findings and
recommendations will be upheld unless they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
report and recommendation, the magistrate judge correctly
addressed the four grounds for relief alleged in the
magistrate judge properly noted that petitioner's second
and third grounds for relief were not presented to the West
Virginia Supreme Court of Appeals (“WVSCA”) in
petitioner's state habeas appeal. The magistrate judge
determined that petitioner would be procedurally barred under
West Virginia Code § 53-4A-1(c) from presenting his
claims regarding ineffective trial counsel and the trial
court's 404(b) ruling in state court, and thus, these
claims are procedurally defaulted and should be dismissed
with prejudice. ECF No. 35 at 14-15.
petitioner's first ground for relief regarding alleged
violation of Article 36 of the Vienna Treaty, the magistrate
judge properly determined that the three alleged violations
can be reduced to the claim that petitioner was not informed
of his right to contact the Bahamian Consulate, and therefore
his consent to the police search and his decision to plead
guilty were not fully knowing and voluntary. Id. at
22. Upon review, the magistrate judge concluded the
WVSCA's application of federal law, i.e. Article 36 of
the Vienna Treaty, was reasonable and accurate and supported
by the factual record, and the petitioner's first ground
for relief should be dismissed with prejudice. Id.
petitioner's fourth ground for relief regarding alleged
ineffective assistance of counsel, the magistrate judge
determined “there is a reasonable argument that trial
counsel's representation did not fall below an objective
standard of reasonableness and that the WVSCA's
application of Strickland was reasonable.”
Id. at 26. Further, the magistrate judge concluded
that petitioner is not entitled to federal habeas relief on
his final ground. Id. at 27. In sum, the magistrate
judge found that the WVSCA's application of federal law
was reasonable and accurate and supported by the factual
record, and that petitioner's fourth ground for relief
should be dismissed with prejudice. Id. at 28.
the magistrate judge recommended that the petitioner's
petition (ECF No. 1) be denied and dismissed with prejudice.
review, this Court finds no clear error in the determinations
of the magistrate judge ...