Watson v. Mirandy

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 31 , GRANTING RESPONDENTS MOTION TO DISMISS DKT. NO. 15 , AND DENYING AND DISMISSING WITH PREJUDICE THE PETITION DKT. NO. 1 . It is so ORDERED the Court ADOPTS the R&R Dkt. No. 31 ;OVERRULES Watso ns objections Dkt. No. 34 ; GRANTS the respondents motion to dismiss the Petition as untimely Dkt. No. 15 ; and DENIES the Petition Dkt. No. 1 and DISMISSES this case WITH PREJUDICE. Court DENIES a certificate of appealability. Clerk is further DIRECTED to enter a separate judgment order and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 8/7/2017. (copy counsel of record via CM/ECF, Copy Pro Se Petitioner via certified mail)(jmm) (Additional attachment(s) added on 8/7/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT W. WATSON, JR.,
Petitioner,
v.

CIVIL ACTION NO. 1:16CV185
(Judge Keeley)

PAT MIRANDY, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 15], AND
DENYING AND DISMISSING WITH PREJUDICE THE PETITION [DKT. NO. 1]
On September 9, 2016, the pro se petitioner, Robert W. Watson,
Jr. (“Watson”), filed a Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (“Petition”) (Dkt. No.
1).

He

contends

that,

during

his

West

Virginia

criminal

proceedings, he was forced to waive his right to a speedy trial
without the benefit of counsel, and that his habeas counsel was
ineffective for failing to raise this issue (Dkt. No. 6 at 6-9).
Watson further argues that, although his conviction became final
more than one year before he filed the Petition, it is timely based
on his “invoking of plain error doctrine.” For relief, Watson seeks
immediate release and asks the Court to set aside his conviction
and void his sentence. Id. at 19-20.
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred
the Petition to the Honorable Michael J. Aloi, United States
Magistrate Judge, for initial review. After being directed to show

WATSON V. MIRANDY

1:16CV185

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 15], AND
DENYING AND DISMISSING WITH PREJUDICE THE PETITION [DKT. NO. 1]
cause, the respondent filed a motion to dismiss the Petition as
untimely (Dkt. No. 15). He argued that, at the latest, Watson’s
conviction became final and triggered the one-year statute of
limitations provided in 28 U.S.C. § 2244(d)(1) on February 23, 2013
(Dkt. No. 16 at 8-10). Although Watson had filed a habeas petition
in state court on July 24, 2014, that proceeding commenced more
than one year after his conviction had become final, and thus could
not toll the statute of limitations, which the respondent contends
expired on February 24, 2014. Id. at 10. In his response, Watson
argued that the Court should hear his untimely petition to avoid a
“manifest injustice” (Dkt. No. 20 at 2).
In his Report and Recommendation (“R&R”), Magistrate Judge
Aloi recommended that the Court deny and dismiss the Petition (Dkt.
No. 31). The R&R reasoned that Watson’s one-year statutory period
began to run on November 26, 2012. Absent a tolling event, the
limitations period thus expired on November 27, 2013, well before
Watson filed the Petition. Id. at 7-8. Magistrate Judge Aloi
further reasoned that Watson could take advantage of neither
statutory nor equitable tolling. First, although Watson pursued
state habeas relief by filing a petition on July 24, 2014, see 28
U.S.C. § 2244(d)(2) (excluding from the one-year limitations period
2

WATSON V. MIRANDY

1:16CV185

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 15], AND
DENYING AND DISMISSING WITH PREJUDICE THE PETITION [DKT. NO. 1]
“time during which a properly filed application for State postconviction” relief is pending), the period in which to seek federal
habeas relief had already expired and “there was nothing left to
toll.” Second, Watson is not entitled to equitable tolling because
he failed to pursue his rights diligently or to demonstrate that an
extraordinary circumstance prevented timely filing (Dkt. No. 31 at
8-13).
The R&R also informed Watson of his right to file “written
objections identifying the portions of the Recommendation to which
objections are made, and the basis for such objections.” Id. at 14.
It further warned him that the failure to do so may result in
waiver of his right to appeal. Id. Watson filed timely objections
on July 28, 2017 (Dkt. No. 34).
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been made
3

WATSON V. MIRANDY

1:16CV185

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 15], AND
DENYING AND DISMISSING WITH PREJUDICE THE PETITION [DKT. NO. 1]
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F.
Supp. 2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs,
Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).
Failure to raise specific errors waives the claimant’s right to a
de novo review because “general and conclusory” objections do not
warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see
also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009).
Indeed, failure to file specific objections waives appellate review
of both factual and legal questions. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
Here,

Watson’s

one-page

objection

fails

to

identify

any

specific errors and, in fact, contains only passing reference to
the R&R (Dkt. No. 34). Instead, Watson summarizes the factual and
procedural basis of his claims, and argues generally that he is
entitled to equitable tolling because any delay in filing his
4

WATSON V. MIRANDY

1:16CV185

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 15], AND
DENYING AND DISMISSING WITH PREJUDICE THE PETITION [DKT. NO. 1]
direct appeal - rather than the relevant delay in seeking habeas
relief - was beyond his control. Id. at 1. These reiterations and
general contentions, all of which were fully and fairly addressed
in the R&R, place the Court under no obligation to conduct a de
novo review. Diamond, 414 F.3d at 315. Therefore, upon review of
the R&R and the record for clear error, the Court adopts the
recommendation of the Magistrate Judge for the reasons discussed in
the R&R (Dkt. No. 31).
In conclusion, the Court:
1.

ADOPTS the R&R (Dkt. No. 31);

2.

OVERRULES Watson’s objections (Dkt. No. 34);

3.

GRANTS the respondent’s motion to dismiss the Petition as
untimely (Dkt. No. 15); and

4.

DENIES the Petition (Dkt. No. 1) and DISMISSES this case
WITH PREJUDICE.

It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to

the

applicant”

in

such

cases.
5

If

the

court

denies

the

WATSON V. MIRANDY

1:16CV185

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 15], AND
DENYING AND DISMISSING WITH PREJUDICE THE PETITION [DKT. NO. 1]
certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.” 28 U.S.C. foll. § 2254(a).
The

Court

finds

that

it

is

inappropriate

to

issue

a

certificate of appealability in this matter because Watson has not
made a “substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the

district

court

is

likewise

debatable.

See

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court finds that Watson has not made the requisite showing, and
DENIES a certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to the pro se petitioner, certified mail,
return receipt requested. The Clerk is further DIRECTED to enter a
separate judgment order and to remove this case from the Court’s
active docket.
Dated: August 7, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
6