Heavener v. Pszczolkowski

Filing 53

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 51 . The Court ADOPTS the R&R Dkt. No. 51 ; GRANTS the respondents Motion for Summary Judgment Dkt.No. 36 ; DENIES the Petition Dkt. Nos. 1 , 16 ) and DISMISSES this case WITH PREJUDICE. Court fi nds that Heavener has not made the requisite showing,and DENIES a certificate of appealability. Court DIRECTS the Clerk to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 7/30/2018. (copy counsel of record, copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/30/2018: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
FERLIN HEAVENER,
Petitioner,
v.

//

CIVIL ACTION NO. 1:17CV13
(Judge Keeley)

KAREN PSZCZOLKOWSKI, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 51]
On February 2, 2017, the pro se petitioner, Ferlin Heavener
(“Heavener”), mailed a letter to the Clerk of Court, indicating
that he wished “to appeal the Memorandum Decision of the West
Virginia Supreme Court of Appeals” that denied him state habeas
corpus relief (Dkt. No. 1). On April 17, 2017, Heavener utilized
the court-approved form to file his Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody (“Petition”)
(Dkt. No. 16). Heavener contends that the State of West Virginia
improperly

imposed

restitution

in

the

amount

of

$144,164.16.

Pursuant to 28 U.S.C. § 636 and the local rules, the Court referred
the Petition to the Honorable Robert W. Trumble, United States
Magistrate Judge, for initial review.
The respondent moved for summary judgment on October 13, 2017,
arguing that Heavener’s claims were not cognizable under § 2254 or,
in the alternative, that he had failed to exhaust all of his claims
in state court (Dkt. No. 37). On July 2, 2018, Magistrate Judge
Trumble entered a Report and Recommendation (“R&R”) recommending

HEAVENER V. PSZCZOLKOWSKI

1:17CV13

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 51]
that the Court grant the respondent’s motion (Dkt. No. 51). He
reasoned that the Court does not have jurisdiction under § 2254 to
entertain claims regarding restitution because Heavener is not “in
custody” with regard to those claims. Id. at 18. The R&R also
informed

Heavener

of

his

right

to

file

“written

objections

identifying those portions of the recommendation to which objection
is made, and the basis for such objection.” It further warned that
failure to do so would result in waiver of the right to appeal. Id.
at 23. Although he received the R&R (Dkt. No. 52), Heavener has not
filed any objections to the recommendation.
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
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Having received no objections to the R&R, the Court has no
duty to conduct a de novo review of Magistrate Judge Trumble’s
findings. Furthermore, following a review of the R&R and the record

HEAVENER V. PSZCZOLKOWSKI

1:17CV13

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 51]
for clear error, the Court:
1)

ADOPTS the R&R (Dkt. No. 51);

2)

GRANTS the respondent’s Motion for Summary Judgment (Dkt.
No. 36);

3)

DENIES the Petition (Dkt. Nos. 1; 16); and

4)

DISMISSES this case WITH PREJUDICE.
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.

If

the

court

denies

the

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 Heavener 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,

HEAVENER V. PSZCZOLKOWSKI

1:17CV13

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 51]
the Court finds that Heavener has not made the requisite showing,
and DENIES a certificate of appealability.
It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment order
and to transmit copies of both Orders to counsel of record and the
pro se petitioner, certified mail and return receipt requested.
DATED: July 30, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE