Kandis v. Ballard
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 8/1/2017. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 8/1/2017: # 1 Certified Mail Return Receipt) (tlg).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO.: 3:16-CV-135
DAVID BALLARD, Warden,
ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Currently before the Court is a Report and Recommendation (“R&R”) entered by
United States Magistrate Judge Robert W. Trumble on April 27, 2017. ECF No. 26.
Pursuant to Rule 2 of the Local Rules of Prisoner Litigation Procedure, this action was
referred to Magistrate Judge Trumble for submission of an R&R. Therein, Magistrate
Judge Trumble recommends that this Court grant the Respondent’s Motion for Summary
Judgement, deny the Petitioner’s Petition and dismiss the same with prejudice. After
receiving an extension of time, the Petitioner filed objections to the R&R on June 19,
2017. ECF No. 31. Accordingly, this matter is now ripe for adjudication.
On September 20, 2016, Michael Kandis (“Petitioner”) filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In his petition, the Petitioner advances
three grounds for which he is being held in violation of the Constitution or laws of the
United States. Specifically, the Petitioner avers that he was denied his right to effective
counsel, his right to a direct appeal and due process. See ECF No. 1. On October 26,
2016, the Respondent filed a motion for summary judgment. ECF No. 11. Thereafter,
Magistrate Judge Trumble entered a Roseboro notice [ECF No. 13], and the Petitioner
filed a response on January 13, 2016. ECF No. 18.
On April 27, 2017, Magistrate Judge Trumble entered his R&R. ECF No. 26.
Thereafter, the Petitioner filed a motion for an extension of time to object [ECF No. 28],
which was granted [ECF No. 29], objections [ECF No. 31], a motion for certificate of
appealability [ECF No. 32], a response [ECF No. 34] to the Respondent’s motion to strike
[ECF No. 33] and a motion to supplement his objections [ECF No. 35].
Upon reviewing the record, the Court finds that the facts as explained in the R&R
accurately and succinctly describe the circumstances underlying the Petitioner’s claims.
For ease of review, the Court incorporates those facts herein; however, it will briefly
outline the most relevant facts of this case.
In 2013, the Petitioner pled guilty to three counts of robbery in the second degree,
which is a felony. As part of the Petitioner’s plea agreement, he waived “his right to
challenge the validity of [the] plea agreement by direct appeal in state or federal court, to
appeal any pre-trial or post conviction rulings of the circuit court, to try and modify the
plea agreement any way, or to otherwise challenge the validity of the plea agreement in
any legal proceeding of any nature in any court.” ECF No. 11-2 at paragraph 9.
The Petitioner’s arguments are based upon his lawyer’s alleged ineffectiveness for
supposedly failing to secure an earlier plea offer, which in hindsight, would have resulted
in a shorter sentence. However, the earlier plea deal guaranteed more time to be served
than the fewest years possible under the second plea offer. Further, counsel for the
Petitioner wrote him a letter advising him to accept the earlier plea offer.
In upholding the circuit court’s denial of the Petitioner’s state habeas corpus
petition, the West Virginia Supreme Court of Appeals found, as the record supports, that
“the circuit court did not clearly err in finding that there was no evidence to counter its
determination at the plea hearing that petitioner entered his guilty pleas ‘knowingly,
intelligently, and of his own free will.’” Kandis v. Ballard, No. 15-0431, 2016 WL 1549453,
at *3 (W. Va. Apr. 15, 2016).
II. LEGAL STANDARDS
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). Further, failure to file timely objections constitutes a waiver of de novo review
and the Petitioner’s 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). Pursuant to this Court’s local rules, “written objections shall identify
each portion of the Magistrate’s recommended disposition which is being challenged and
shall specify the basis for such objection.” LR PL P 12.2.
“When only a general objection is made to a portion of a magistrate judge’s reportrecommendation, the Court subjects that portion of the report-recommendation to only a
clear error review.”
Williams v. New York State Div. of Parole, No. 9:10-CV-1533
(GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). “Similarly, when an
objection merely reiterates the same arguments made by the objecting party in its original
papers submitted to the magistrate judge, the Court subjects that portion of the reportrecommendation challenged by those arguments to only a clear error review.” Taylor v.
Astrue, 32 F. Supp. 3d 253, 260-61 (N.D.N.Y. 2012). Courts have also held that when a
party’s objection lacks adequate specificity, the party waives that objection. See Mario v.
P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that even though a
party filed objections to the magistrate judge’s R&R, they were not specific enough to
preserve the claim for review). Bare statements “devoid of any reference to specific
findings or recommendations . . . and unsupported by legal authority, [are] not sufficient.”
Mario 313 F.3d at 766. Pursuant to the Federal Rules of Civil Procedure and this Court’s
Local Rules, “referring the court to previously filed papers or arguments does not
constitute an adequate objection.” Id.; See also Fed. R. Civ. P. 72(b); LR PL P 12. Finally,
the Fourth Circuit has long held, “[a]bsent objection, we do not believe that any
explanation need be given for adopting [an R&R].” Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983) (finding that without an objection, no explanation whatsoever is required
of the district court when adopting an R&R).
Upon review of all the filings in this matter, the Court finds that the Petitioner has
presented no new material facts or arguments in his objections to the magistrate judge’s
R&R. Rather, the objections reiterate the same arguments the Petitioner made in his
original filings, which were considered by the magistrate judge when he issued the R&R.
Specifically, these arguments can be found in his § 2254 petition, response to the
Respondent’s motion for summary judgment, reply to Respondent’s motion to strike and
motion to hold an evidentiary hearing and appoint counsel. Therefore, the Court finds
that de novo review is not required because the Petitioner has failed to make specific
objections that present new facts or arguments not already before the magistrate judge.
Accordingly, finding that Magistrate Judge Trumble’s R&R carefully considers the
record and applies the appropriate legal analysis, it is the opinion of this Court that
Magistrate Judge Trumble=s Report and Recommendation [ECF No. 26] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated therein.
Thus, the Respondent’s Motion for Summary Judgment [ECF No. 11] is hereby
GRANTED, and the Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 is DENIED and DISMISSED WITH PREJUDICE. The Respondent’s Motions to
Strike [ECF Nos. 20 & 33] are GRANTED. The Petitioner’s Motion to Hold an Evidentiary
Hearing and for Appointment of Counsel [ECF No. 22] and Motion to Supplement
Objection [ECF No. 35] are DENIED. The Clerk is DIRECTED to enter judgment for the
This matter is ORDERED STRICKEN from the Court’s active docket.
The Petitioner has not met the requirements for issuance of a certificate of
appealability. A court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §.2253(c)(2).
If a district court denies a petitioner’s claims on the merits, then “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“If, on the other hand, the denial was procedural, the petitioner must show ‘that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” United States v. McRae, 793 F.3d 392, 397
(4th Cir. 2015) (quoting Slack, 529 U.S. at 484). Here, upon a thorough review of the
record, the Court concludes that the Petitioner has not made the requisite showing.
Accordingly, the Petitioner’s Motion for Certificate of Appealability [ECF No. 32] is
The Clerk is further DIRECTED to transmit copies of this Order to all counsel of
record and the pro se Petitioner.
DATED: August 1, 2017
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