Moats v. Plumley
ORDER ADOPTING 17 REPORT AND RECOMMENDATION; denying as moot Petitioner's 12 Motion to Compel an Answer from the Respondent; and denying as moot Petitioner's 20 Pro Se Motion for Hearing. The Court dismisses Petitioner's 28 U.S .C. §2254 Petition 1 without prejudice. This matter is ordered stricken from the docket and judgment is to be entered in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 4/10/2017. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 4/10/2017: # 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-150
MARVIN C. PLUMLEY,
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of
the Report and Recommendation (“R&R”) of United States Magistrate Judge Robert W.
Trumble. Pursuant to this Court’s Local Rules, this action was referred to Magistrate
Judge Trumble for submission of an R&R. Magistrate Judge Trumble issued his R&R
[ECF No. 17] on March 17, 2017. In the R&R, he recommends that the Petitioner’s 28
U.S.C. § 2254 petition [ECF No. 1] be dismissed without prejudice and the Petitioner’s
Motion to Compel an Answer from the Respondent [ECF No. 12] be denied as moot. For
the reasons set forth below, the court ADOPTS Magistrate Judge Trumble’s R&R,
DISMISSES the Petitioner’s § 2254 Petition WITHOUT PREJUDICE and DENIES AS
MOOT the Petitioner’s Motion to Compel an Answer.
Objections to Magistrate Judge Trumble’s R&R were due within fourteen days of
the Petitioner being served with a copy of the same. 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b).
Service was accepted at the Huttonsville Correctional Center in
Huttonsville, West Virginia, on March 20, 2017. On March 27, 2017, the Petitioner timely
filed his objections to the R&R [ECF No. 19]. In these objections, he requests the Court
set a hearing in this matter. Therefore, his objections were also filed as a Pro Se Motion
for Hearing [ECF No. 20].
The Court is aware of the Petitioner’s pro se status. Pro se pleadings are held to
less stringent standards than those drafted by licensed attorneys. See Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978). Accordingly, the Court construes liberally the
Petitioner’s arguments in opposition to the R&R, but will not create objections where none
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, objections to a magistrate judge’s R&R must be specific. See Orpiano v.
Johnson, 687 F.2d 44, 48 (4th Cir. 1982); see also Parker v. Comm’r of Soc. Sec., No.
4:11cv00030, 2012 WL 1356593, at *3 (W. D. Va. Apr. 19, 2012). General objections or
mere reiterations of arguments already presented to the magistrate judge “have the same
effect as a failure to object” and do not warrant de novo review. Parker, 2012 WL
1356593, at *3 (internal quotations and citation omitted); see also United States v.
Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007); Page v. Lee, 337 F.3d 411, 416 n.3 (4th
Cir. 2003). Thus, the Court will review de novo only those portions of the R&R to which
the Petitioner has made specific objections. The remainder of the R&R to which “general
and conclusory” objections have been made will be reviewed for clear error. See McGhee
v. Colvin, 6:14-cv-02644-JMC, 2015 WL 5707866, at *1 (Sept. 25, 2015) (internal
quotations and citation omitted).
Here, the Petitioner makes just one specific objection to the R&R. He claims he
has filed direct appeals on his conviction, sentence, and Habeas proceedings, and has
thus exhausted his available state remedies. Upon review, it appears as though the
Petitioner did file appeals with the Supreme Court of Appeals of West Virginia. However,
they were dismissed as premature because the underlying cases are still pending before
the Circuit Court of Monongalia County, West Virginia.
Accordingly, because the
Petitioner still has potential remedies available in state court, the exhaustion requirement
is not satisfied and the Petitioner’s objection is OVERRULED.
The remainder of the Petitioner’s arguments are, in some form, reiterations of
claims or factual scenarios already presented. Consequently, in the absence of specific
objections, this Court is not required to provide an explanation for adopting the remaining
portions of the R&R. See McGhee, 2015 WL 5707866, at *2.
Therefore, upon careful review of the R&R, it is the opinion of this Court that
Magistrate Judge Trumble’s Report and Recommendation [ECF No. 17] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated therein. Accordingly,
the Court DISMISSES the Petitioner’s 28 U.S.C. § 2254 Petition [ECF No. 1] WITHOUT
PREJUDICE and DENIES AS MOOT the Petitioner’s Motion to Compel an Answer from
the Respondent [ECF No. 12]. Further, the Court DENIES AS MOOT the Petitioner’s Pro
Se Motion for Hearing [ECF No. 20].
The Clerk is DIRECTED to strike this matter from the Court’s active docket, enter
a separate judgment in favor of the Respondent and transmit a copy of this Order to the
pro se Petitioner by certified mail, return receipt requested, to his last known address as
shown on the docket.
DATED: April 10, 2017
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