United States District Court, N.D. West Virginia
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
S. KLEEH, UNITED STATES DISTRICT JUDGE
Introduction and Procedural Background
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 [Dkt. No. 63 at 10].
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
August 24, 2018, United States Magistrate Judge James E.
Seibert issued a R&R [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].
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.
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,
[Dkt. No. 66].
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].
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.
April 6, 2015, No. 5:15-cv-42, Petitioner filed his first
federal habeas petition, and raised three grounds for
relief[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 [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
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 [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 [Case No. 3:16-cv-3, Dkt. No. 41].
Standard of Review
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.” 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, ” or (2) “resulted in a