Pendleton v. Terry

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION; granting 8 Motion for Leave to File Excess Pages. This action is ordered DISMISSED without prejudice and judgment is to be entered in favor of the respondent. Signed by District Judge John Preston Bailey on 11/1/2018. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 11/1/2018: # 1 Certified Mail Return Receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
RICKY LEE PENDLETON,
Petitioner,
v.
CIVIL ACTION NO. 3:17-CV-130
(BAILEY)
RALPH TERRY, Acting 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.
6]. 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 September 26, 2018, wherein he recommends this Court
dismiss the petitioner’s § 2241 petition without 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 October 1, 2018 [Doc. 7].
Petitioner timely filed his objections on October 15, 2018 [Doc. 9]. Accordingly, this Court
will conduct a de 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, 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; (14) a Notice of Appeal in Case No. 14-C-639,
which the WVSCA affirmed the Circuit Court’s denial; (15) a § 2254 petition in Case No.
3:16-cv-83, which this Court denied; and (16) a Motion for Relief Pursuant to Rule 60(b)(6),
which this Court denied. On April 21, 2017, the Fourth Circuit denied petitioner’s motion
for authorization to file a second or successive application for relief under 28 U.S.C. § 2255.
The Fourth Circuit also denied petitioner’s motion for authorization to file a second or
successive application for relief under 28 U.S.C. § 2254 on August 24, 2017. On October
23, 2017, the petitioner filed the instant § 2241 petition [Doc. 1].
Petitioner raises nine issues in his present case. He asserts: (1) that the refusal of
the Circuit Court of Berkeley County to address his claims constituted a miscarriage of
justice; (2) that he received ineffective assistance of counsel in his state habeas claim; (3)
that he received ineffective assistance of counsel in his state trial; (4) that his state
indictment was defective because it failed to allege the essential elements of malicious
assault; (5) that there was insufficient evidence presented in state court to convict petitioner
of kidnaping; (6) that his state indictment was defective because it failed to allege the
essential elements of first degree robbery; (7) that his state indictment was defective
because it failed to allege the essential elements of grand larceny; (8) that his double
jeopardy rights were violated when he was convicted in state court of both first degree

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robbery and grand larceny; and (9) that the state court improperly instructed the jury. [Doc.
1]. For relief, petitioner asks this Court “to review each ground point-for-point and provide
a legal determination on the merit[s] upon considering them provided by the fundamental
miscarriage of justice exception.” (Id. at 11).
The R&R notes that the petitioner is presently confined at the Mount Olive
Correctional Complex pursuant to the judgment of the state court. Therefore, to challenge
the validity of his conviction and/or sentence, he must utilize § 2254 as the habeas remedy
authorized for state inmates. See Gregory v. Coleman, 218 Fed.App’x. 266 (4th Cir.
2007). Accordingly, the petitioner’s instant § 2241 petition should be dismissed as not
being properly filed and should be treated as a second or successive § 2254 petition which,
as previously noted, is barred absent permission from the Fourth Circuit Court of Appeals.
As previously noted, this Court already denied the petitioner’s § 2254 petition in Case 3:16cv-83, and the Fourth Circuit issued an Order in Case No. 17-342, which denied petitioner’s
motion for an order authorizing the district court to consider a second or successive
application for relief under 28 U.S.C. § 2254.
In his Objections, the petitioner reiterates his unhappiness with the unsuccessful
streak of post-conviction attempts he has amassed. He essentially seeks once again to
relitigate his trial. This Court has reviewed the petitioner’s Objections and finds them
woefully lacking in merit. Accordingly, the same are OVERRULED.
Conclusion
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 6] should be, and is, hereby ORDERED ADOPTED for the
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reasons more fully stated in the magistrate judge’s report. The Motion for Leave to Exceed
the Page Limitation [Doc. 8] is GRANTED. The petitioner’s Objections [Doc. 9] are
OVERRULED. Accordingly, this Court ORDERS that the § 2241 petition [Doc. 1] be
DISMISSED WITHOUT PREJUDICE. 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.
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: November 1, 2018.

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