Pendleton v. Ballard

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION: it is the opinion of this Court that the 32 Report and Recommendation is hereby ORDERED ADOPTED. The Respondent's 14 Motion to Dismiss is GRANTED. This Court ORDERS that the 1 § 2254 petition be DISMISSED WITH PREJUDICE. The Petitioner's 25 Motion for Reconsideration from the District Court's Order Denying Petitioner's Motion Concerning Acquiring the May Term 1996 State Proceeding, 27 Amended Motion for Reconsideratio n of the same, and 19 Motion to File Supplemental Exhibits to be Added to the Recently Filed: Reply to Show Cause for Equitable Tolling are DENIED AS MOOT. Finally, the 31 Petition for Writ of Mandamus is DENIED. This Court further DIRECTS the C lerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. As a final matter, upon an independent review of the record, this Court hereby DENIES the petitioner a certificate of appealability, findi ng that he has failed to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Signed by District Judge John Preston Bailey on 7/7/2017. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 7/7/2017: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
RICKY LEE PENDLETON,
Petitioner,
v.
CIVIL ACTION NO. 3:16-CV-83
(BAILEY)
DAVID BALLARD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Robert W. Trumble [Doc.
32]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed report and a recommendation (“R&R”). Magistrate
Judge Trumble filed his R&R on May 25, 2017, wherein he recommends this Court dismiss
the petitioner’s § 2254 petition with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo

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review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Trumble’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
The docket indicates the petitioner accepted service on June 1, 2017 [Doc. 33]. Petitioner
timely filed his objections on June 19, 2017 [Doc. 34]. Accordingly, this Court will conduct
a do novo review of those portions of the R&R to which objections were made; the
remainder of the R&R will be reviewed for clear error.
Discussion
Petitioner is serving, among other things, a sentence of life with mercy after being
found guilty at trial of (1) kidnapping with a recommendation of mercy; (2) malicious
assault; (3) grand larceny; and (4) aggravated robbery. Since that time, petitioner has filed
the following: (1) a direct appeal to the Supreme Court of Appeals of West Virginia
(“WVSCA”), which was denied; (2) a petition for evidentiary hearing, which was denied; (3)
a Motion for Habeas Corpus with the Circuit Court of Berkeley County (Case No. 03-C556), which was dismissed; (4) a Writ of Prohibition (Case No. 07-C-679), which was
denied and dismissed; (5) a Writ of Coram Nobis (Case No. 08-C-17), which was denied
and dismissed without prejudice; (6) reconsideration of the ruling on the Writ of Coram
Nobis, which was denied; (7) another Notice of Appeal of Case No 08-C-17, which was
denied; (8) a petition for Writ of Certiorari, which was denied; (9) a Rule 35 Motion to
Reduce Sentence, which was denied as untimely; (10) a Petition for Writ of Habeas Corpus
in each of three separate cases (Case Nos. 10-C-172, 10-C-695, 10-C-670), which were
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consolidated and dismissed without prejudice; (11) a Notice of Appeal in Case No. 10-C670, in which the WVSCA affirmed the Circuit Court’s denial of petitioner’s habeas petition;
(12) a Motion for Reduction pursuant to Rule 35(a) and West Virginia Rule of Criminal
Procedure 60(b), which was denied; (13) a petition for Writ of Habeas Corpus in Case No.
14-C-639, which was denied and dismissed; and (14) a Notice of Appeal in Case No. 14-C639, in which the WVSCA affirmed the circuit court’s denial. On June 20, 2016, the
petitioner filed the instant § 2254 petition.
As the R&R notes, the only issues which need resolved for purposes of the instant
petition are whether the § 2254 petition is timely, and if not, whether the petitioner is
entitled to equitable tolling. This Court answers both issues in the negative.
In 1996, Congress passed the AEDPA, establishing a one-year limitations period for
all federal habeas corpus petitions. Under the Act, the limitations period begins to run from
the last of:
1.

The date on which the judgment of conviction becomes final by the
conclusion of direct review or the expiration of the time for seeking
such review;

2.

The date on which the impediment to filing a motion created by State
action in violation of the Constitution or laws of the United States is
removed, if the movant was prevented from making a motion by such
State action;

3.

The date on which the constitutional right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or

4.

The date on which the factual predicate of the claim or claims
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presented could have been discovered through the exercise of due
diligence.

28 U.S.C. § 2244(d)(1); Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002); Harris v.
Hutchinson, 209 F.3d 325 (4th Cir. 2000).
As noted by the magistrate judge in his R&R, the petitioner was sentenced in the
Circuit Court of Berkeley County on September 11, 1998. The WVSCA refused petitioner’s
appeal on June 16, 1999. He then had 90 days to seek review of his conviction by the
United States Supreme Court. Because he did not file a petition for writ of certiorari, his
conviction became final on September 14, 1999. Therefore, he had one year from then,
or until September 13, 2000, to file a § 2254 petition. When petitioner finally filed a habeas
petition on October 1, 2003, the Circuit Court dismissed the petition on the basis that it did
not have jurisdiction over the matter because he was still serving his federal sentence and
had not begun serving his sentence for the state conviction. Accordingly, it appears that
from the time he was sentenced by the Circuit Court of Berkeley County until he was
released from the custody of the BOP on February 25, 2007, to begin serving his state
sentence, he was prevented from exhausting his state remedies, and thus prevented from
pursuing the instant § 2254 petition. As such, the R&R has accounted for this time, and
has examined this matter from the date petitioner entered State custody – February 25,
2007 – forward to determine whether he filed the instant petition within the one-year statute
of limitations.
The R&R notes that the first habeas petition was filed 184 days after petitioner was
released from federal custody. The statute of limitations was then tolled through the Circuit
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Court’s denial of that petition and the denial of his petition for appeal on June 11, 2009.
The one-year statute of limitations thus began to run again on June 12, 2009, and expired
181 days later on December 10, 2009. Accordingly, the petitioner’s instant § 2254 petition
was filed approximately six years, six months after the statute of limitations under
§ 2244(d)(1)(B) had expired.
Petitioner does assert a claim for equitable tolling. The AEDPA statute of limitations
is subject to equitable modifications such as tolling. Harris v. Hutchinson, 209 F.3d 325,
328-29 (4th Cir. 2000). However, “[e]quitable tolling is available only in ‘those rare
instances where – due to circumstances external to the party’s own conduct – it would be
unconscionable to enforce the limitation period against the party and gross injustice would
result.’ Thus, to be entitled to equitable tolling, an otherwise time-barred petitioner must
present ‘(1) extraordinary circumstances, (2) beyond his control or external to his own
conduct, (3) that prevented him from filing on time.’” United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004)(internal citations omitted). The R&R correctly explains that none of the
above apply in this case.
Petitioner argues that his trial counsel did not provide competent representation and
did not act with reasonable diligence and promptness in filing a direct appeal from his
conviction or in filing a state habeas petition, and W.Va. Code § 53-4A-1(a) prevented
petitioner from filing his state habeas until he was released from federal custody. Neither
of these arguments save the instant petition because this Court did not start the clock until
February 25, 2007. Since petitioner makes no credible arguments that would entitle him
to any tolling after February 25, 2007, his petition is untimely.
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In his Objections, the petitioner argues actual innocence. Having reviewed the
twenty-four pages of objections, however, it is clear to this Court that the petitioner attempts
to do no more than to relitigate his trial. He alleges no new evidence; rather, petitioner
simply argues that the evidence established at trial could not have lead to a conviction.
The jury found otherwise. Nevertheless, this is not the type of “actual innocence” claim for
which § 2254 relief is available.
Conclusion
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 32] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. The Respondent’s Motion to
Dismiss [Doc. 14] is GRANTED. Accordingly, this Court ORDERS that the § 2254 petition
[Doc. 1] be DISMISSED WITH PREJUDICE. The Petitioner’s Motion for Reconsideration
from the District Court’s Order Denying Petitioner’s Motion Concerning Acquiring the May
Term 1996 State Proceeding [Doc. 25], the Amended Motion for Reconsideration of the
same [Doc. 27], and Motion to File Supplemental Exhibits to be Added to the Recently
Filed: Reply to Show Cause for Equitable Tolling [Doc. 19] are DENIED AS MOOT.
Finally, the Petition for Writ of Mandamus [Doc. 31] is DENIED. This Court further
DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case
from the active docket of this Court.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the petitioner a certificate of appealability, finding that he has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: July 7, 2017.

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