Billiter v. Ballard

Filing 91

ORDER OVERRULING OBJECTIONS AND ADOPTING MAGISTRATE JUDGE'S 57 REPORT AND RECOMMENDATION. Signed by District Judge Gina M Groh on 8/1/2022. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 8/1/2022: # 1 Certified Mail Return Receipt) (tlg).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
HAROLD M. BILLITER,
Petitioner,
v.

CIVIL ACTION NO.: 3:17-CV-22
(GROH)

RALPH TERRY,
Respondent.
ORDER OVERRULING OBJECTIONS
AND ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Now before the Court is the Report and Recommendation (“R&R”) of United States
Magistrate Judge James P. Mazzone. Pursuant to the Local Rules, this action was
referred to Magistrate Judge Mazzone for submission of an R&R. Magistrate Judge
Mazzone issued his R&R on July 15, 2021. ECF No. 57. Therein, Magistrate Judge
Mazzone recommends that this Court dismiss with prejudice the Petitioner’s 28 U.S.C. §
2254 Petition. The Petitioner filed objections to the R&R on April 25, 2022, [ECF No. 90]
which was timely under the extended deadline set by this Court [ECF No. 88]. Accordingly,
the R&R and Petition are ripe for review.
I.

BACKGROUND

On March 8, 2017, Harold M. Billiter (“Petitioner”), filed a Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody. ECF No. 1. The
Petitioner is currently a State prisoner incarcerated in the Mount Olive Correctional
Complex in Mount Olive, West Virginia. On December 7, 2010, the Petitioner was found

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guilty by a jury in the Harrison County Circuit Court, West Virginia, of one count of sexual
assault in the first degree and one count of sexual abuse by a parent, guardian or person
in a position of trust to a child. ECF Nos. 19-4, 19-5. On May 18, 2011, the Harrison
County Circuit Court sentenced the Petitioner to not less than twenty-five (25) nor more
than one hundred (100) years for his conviction for first degree sexual assault and to not
less than ten (10) nor more than twenty (20) years for his conviction for sexual abuse by
a parent, guardian, custodian, or person in a position of trust to a child. ECF Nos. 19-5,
19-6.
In his petition, the Petitioner asserts four grounds for relief: (1) the Circuit Court
violated his Fifth and Fourteenth Amendment rights by allowing a witness for the state to
be present in the courtroom while her daughter, the alleged victim, testified, (2) the Circuit
Court violated his Fifth and Fourteenth Amendment rights when it admitted photographs
and corresponding testimony without sufficient authentication or relevance, (3) the Circuit
Court violated his Fifth and Fourteenth Amendment rights when it sustained the State’s
objections to the Petitioner’s questioning during examination of two witnesses and (4) the
Circuit Court violated his Fifth and Fourteenth Amendment rights by upholding the jury
verdict because the alleged victim was inherently unbelievable and her testimony was
insufficient to support the jury’s verdict.
Upon examination of the record, the Court finds that the background facts and
procedural history as explained in the R&R accurately and succinctly describe the
circumstances underlying the Petitioner’s claims. Indeed, in his objections to the R&R,
the Petitioner concedes to the procedural history as outlined in the R&R. ECF No. 90 at
1. For ease of review, the Court incorporates those facts herein.

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Magistrate Judge Mazzone entered the R&R in this matter on July 15, 2021. ECF
No. 57. Therein, Magistrate Judge Mazzone recommends that this Court dismiss with
prejudice the Petitioner’s 28 U.S.C. § 2254 Petition. In particular, the magistrate found
that the Petitioner failed to prove that any of the state court decisions were contrary to, or
involved an unreasonable application of, clearly established Federal law or were based on
an unreasonable determination of the facts in light of the evidence presented.
Additionally, Magistrate Judge Mazzone further recommended that the Respondent’s
Motion to Dismiss based on failure to exhaust [ECF No. 20] be terminated as moot.
After the submission of the R&R, the Petitioner was granted six extensions for his
deadline to file objections to the R&R, culminating in a final deadline of April 21, 2022.
ECF Nos. 63, 69, 78, 81, 84, 88. The Court received the Petitioner’s objections on April
25, 2022, but the Court notes that the objections were postmarked on April 21, 2022, and
thus timely filed.

ECF Nos. 90, 90-1.

Accordingly, the R&R and Petition are ripe for

review.
II.

LEGAL STANDARD

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,

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94 (4th Cir. 1984). Pursuant to this Court’s Local Rules, “written objections shall identify
each portion of the magistrate judge’s recommended disposition that is being challenged
and shall specify the basis for each objection.” LR PL P 12(b). The Local Rules also
prohibit objections that “exceed ten (10) typewritten pages or twenty (20) handwritten
pages, including exhibits, unless accompanied by a motion for leave to exceed the page
limitation.” LR PL P 12(d).
“When a party does make objections, but these objections are so general or
conclusory that they fail to direct the district court to any specific error by the magistrate
judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730
(S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “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

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legal authority, [are] not sufficient.” Id. 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).
III.

LEGAL ANALYSIS

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 six objections to the magistrate
judge’s R&R. The Petitioner’s objections largely reiterate similar arguments already
presented throughout this litigation. Indeed, in the Petitioner’s second, fourth and fifth
objections, the Petitioner does not respond to, or even acknowledge, any finding
articulated in the R&R.
In his first objection, the Petitioner takes issue with the R&R’s finding that the “West
Virginia Supreme Court of Appeals decision addressed all of Petitioner’s raised grounds
and affirmed Petitioner’s conviction and sentence.” ECF No. 57 at 10. The Petitioner
argues that the West Virginia Supreme Court of Appeals (WVSCA) did not address any
of his claims because, in their decision, the WVSCA opined that “we hereby adopt and
incorporate the circuit court’s findings and conclusions as they relate to petitioner’s
assignments of error.” ECF No. 19-23 at 4. The Petitioner believes that this language
implies that the WVSCA did not read the briefs or underlying decision and adopted the
Circuit Court’s order blindly. Upon review of the WVSCA’s memorandum opinion, in full,

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[ECF No. 19-23], the Court finds that this is not the case. On the first page of its decision,
the WVSCA states “This Court has considered the parties’ briefs and the record on
appeal.” ECF No. 19-23 at 1. Further, later in its opinion, the WVSCA described the
three-prong standard of review used to analyze appeals from circuit court orders denying
habeas corpus relief. Therefore, the Court finds that the R&R properly stated that the
WVSCA did address all of the grounds raised by the Petitioner in his state habeas case.
Accordingly, to the extent that the Petitioner objects to the magistrate’s characterization
of the WVSCA’s opinion, his objection is OVERRULED.
In his third objection, the Petitioner largely reiterates his argument that the Circuit
Court erred when sustaining the State’s objections to the Petitioner’s questioning of two
witnesses. The Petitioner again claims that the WVSCA erred by adopting the lower
court’s ruling without “reviewing the Petitioner’s grounds and elaborating on them
individually.” ECF No. 90 at 5. Again, the Court finds that this is not an accurate
description of the WVSCA’s decision. Moreover, the Petitioner makes no reference to
any finding of the R&R in this objection. Accordingly, to the extent that the Petitioner
objects to the magistrate’s characterization of the WVSCA’s opinion, his objection is
OVERRULED.
Lastly, the Petitioner’s sixth objection presents a brief argument that the Circuit
Court improperly instructed the jury as it pertained to his charge of sexual assault in the
first degree. The Petitioner refers to Exhibit A, but there are no exhibits attached to his
objections. However, included at the conclusion of the Petitioner’s objections is a partial
letter, labeled confidential and privileged attorney-client communication, between the

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Petitioner and attorney with an unspecified role in the Petitioner’s case. 1 Regardless, as
previously noted by this Court, the Petitioner waived his argument regarding erroneous
jury instructions in state court. Harold B. v. Ames, No. 19-0524, 2020 WL 5240400, at
*3-*4 (W. Va. Sept. 3, 2020) (“Habeas counsel further confirmed, for the second time, that
petitioner was waiving the argument that the jury instructions were erroneous. Petitioner
responded, ‘Correct.’”). Accordingly, the Petitioner’s objection regarding his claim of an
erroneous jury instruction is OVERRULED.
The Petitioner’s remaining three objections repeat the same arguments presented
in the Petitioner’s initial petition, without reference to the R&R. Because the Petitioner
presents no new legal arguments, the Court will review the remainder of the R&R for clear
error only. See Taylor, 32 F. Supp. 3d at 260-61 (holding that “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”). “Clear
error is a very deferential standard of review.” Walsh v. Vinoskey, 19 F.4th 672, 677 (4th
Cir. 2021). “A factual finding is clearly erroneous ‘when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Id. (quoting HSBC Bank USA v. F & M
Bank N. Virginia, 246 F.3d 335, 338 (4th Cir. 2001)).

Upon review of the record, the

Court finds no clear error.
IV.

CONCLUSION

Accordingly, finding that Magistrate Judge Mazzone’s R&R carefully considers the
1

The Petitioner attached only the first page of a letter from an attorney, wherein the author states “I don’t
represent you in your federal habeas case.” ECF No. 90 at 12.

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record and applies the appropriate legal analysis, it is the opinion of this Court that
Magistrate Judge Mazzone=s Report and Recommendation [ECF No. 57] should be, and
is, hereby ORDERED ADOPTED. For the reasons more fully stated in the R&R, the
Petitioner’s § 2254 Petition is DISMISSED WITH PREJUDICE. ECF No. 1. The Court
FURTHER ORDERS that the Respondent’s Motion to Dismiss, based on failure to
exhaust, [ECF No. 20] be TERMINATED as MOOT.
This case is ORDERED STRICKEN from the Court’s active docket.
The Clerk of Court is DIRECTED to transmit copies of this Order to all counsel of
record and the pro se Petitioner, by certified mail, at his last known address as reflected
upon the docket sheet.
DATED: August 1, 2022

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