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Gardner v. Ballard

United States District Court, N.D. West Virginia

September 16, 2019

THOMAS EUGENE GARDNER, JR., Petitioner,
v.
DAVID BALLARD, Warden, Respondent.

         ORDER REJECTING THE AMENDED REPORT AND RECOMMENDATION [DKT. NO. 63], OVERRULING PETITIONER'S OBJECTIONS [DKT. NOS. 57, 66], DENYING AS MOOT MOTION FOR SUMMARY JUDGMENT [DKT. NO. 27], DENYING AS MOOT MOTION FOR EXTENSION OF TIME [DKT. NO. 65], DENYING AND DISMISSING § 2254 PETITION [DKT. NO. 1], AND STRIKING MATTER FROM ACTIVE DOCKET

          THOMAS S. KLEEH, UNITED STATES DISTRICT JUDGE

         I. Introduction and Procedural Background

         Pending before the Court is United States Magistrate Judge James P. Mazzone's Amended Report and Recommendation (“R&R”) [Dkt. No. 63] concerning the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by pro se Petitioner Thomas Eugene Gardner, Jr. (“Petitioner”). The petition for habeas corpus relief under 28 U.S.C. § 2254 was filed on June 28, 2017 [Dkt. No. 1]. While Petitioner asserted six grounds for relief in his petition, Magistrate Judge Mazzone correctly found that the six articulated grounds can more accurately be addressed as four: (1) that his plea was involuntary; (2) that W.Va. Code § 61-8A-2 is unconstitutionally vague; (3) that he received ineffective assistance of counsel; and (4) the West Virginia recidivist statute is unconstitutional[1] [Dkt. No. 63 at 10].

         Respondent filed a Motion for Summary Judgment on May 15, 2018 [Dkt. No. 27], together with forty-seven accompanying exhibits from the state court proceedings [Dkt. Nos. 27-1 through 27-47]. Petitioner was issued a notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on May 21, 2018, advising him of his right and obligation to respond to the motion [Dkt. No. 31]. Petitioner received the Roseboro notice on May 23, 2018 [Dkt. No. 32] but did not file a response to Respondent's Motion for Summary Judgment.

         On August 24, 2018, United States Magistrate Judge James E. Seibert issued a R&R[2] [Dkt. No. 33]. Petitioner sought and received two extensions of time to file objections to the R&R [Dkt. Nos. 36, 39], and the District Court granted Petitioner leave to supplement the record [Dkt. No. 43]. On October 10, 2018, the District Court entered an order supplementing the record and recommitting the case to the magistrate judge for further consideration [Dkt. No. 48].

         On October 31, 2018, Petitioner filed a motion to amend his petition with four attached pages from the court-approved form [Dkt. No. 54, 54-1]. The motion to amend was granted on January 30, 2019 [Dkt. No. 62]. On November 15, 2018, the Petitioner filed objections to the August 24, 2018, R&R [Dkt. No. 57]. The matter was then pending before Magistrate Judge Mazzone for a review and Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule of Prisoner Litigation Procedure (“LR PL P”) 2.

         In the Amended R&R, Judge Mazzone recommends that the Court grant the Respondent's Motion for Summary Judgment [Dkt. No. 27]. After the issuance of the January 30, 2019, Amended R&R, the Petitioner filed a Motion for Extension of Time to File Objections to the R&R [Dkt. No. 65] which is pending. Petitioner filed objections to the Amended R&R on February 25, 2019[3] [Dkt. No. 66].

         For the reasons stated herein, the Court: rejects the Amended R&R [Dkt. No. 63]; overrules Petitioner's objections filed on November 15, 2018 [Dkt. No. 57] and on February 25, 2019 [Dkt. No. 66]; denies as moot Respondent's Motion for Summary Judgment [Dkt. No. 27]; denies as moot Petitioner's Motion for Extension of Time to File Objections to the R&R [Dkt. No. 65]; and denies and dismisses the § 2254 petition [Dkt. No. 1].

         Upon its independent review of the record, the Court finds that the factual and procedural history explained in the Amended R&R [Dkt. No. 63 at 2-11] accurately describes the circumstances underlying Petitioner's claims, apart from one omission: in addition to his other multiple post-conviction filings with the state of West Virginia, and the current federal petition before this Court, Petitioner filed two previous habeas petitions with the Northern District of West Virginia: No. 5:15-cv-42 and No. 3:16-cv-3.

         On April 6, 2015, No. 5:15-cv-42, Petitioner filed his first federal habeas petition, and raised three grounds for relief[4][Case No. 5:15-cv-42, Dkt. No. 1]. On July 20, 2015, after the issuance of two orders to show cause, United States District Judge Frederick P. Stamp, Jr. dismissed the petition for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and a Judgment Order was entered the same day[5] [Case No. 5:15-cv-42, Dkt. Nos. 20 and 21]. The dismissal order advised Petitioner of his right to appeal the judgment of the Court, and advised that he must file a notice of appeal within thirty (30) days after the date of the entry of the judgment order [Case No. 5:15-cv-42, Dkt. No. 20]. Petitioner did not appeal.

         On January 6, 2016, Petitioner filed a second federal habeas petition pursuant to § 2254 in the Northern District of West Virginia, Case Number 3:16-cv-3. Petitioner raised four grounds for relief [Case No. 3:16-cv-3, Dkt. No. 1], and on January 23, 2017, Magistrate Judge James E. Seibert issued a R&R recommending the petition be dismissed because Petitioner failed to exhaust his state remedies as to any claims in the § 2254 petition[6] [Case No.: 3:16-cv-3, Dkt. No. 32]. Petitioner filed objections to Magistrate Judge Seibert's R&R on February 15, 2017 [Case No. 3:16-cv-35, Dkt. No. 35]. By order entered on March 16, 2017, Chief United States District Judge Gina M. Groh adopted the R&R, and dismissed the petition without prejudice for failure to exhaust[7] [Case No. 3:16-cv-3, Dkt. No. 41].

         II. Standard of Review

         Habeas relief is available under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), to state prisoners in “custody in violation of the Constitution or laws or treaties of the United States.”[8] Habeas relief under § 2254 is only appropriate when the state court's adjudication of the claim either (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ”[9] or (2) ‚Äúresulted in a decision ...


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