Phillips v. State of West Virginia
MEMORANDUM AND OPINION ORDER Affirming and Adopting Report and Recommendations of Magistrate Judge: re 32 Report and Recommendations, 31 Amended Report and Recommendations, 30 Report and Recommendations; dismissing 20 Motion for Sentence Redu ction; granting 22 Motion for Summary Judgment. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The petitioner is DENIED a certificate of appealability. Clerk is directed to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 8/10/2011. Copy mailed to pro se petitioner by certified mail, return receipt. (cmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN M. PHILLIPS,
Civil Action No. 5:11CV46
STATE OF WEST VIRGINIA,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORTS
AND RECOMMENDATIONS OF MAGISTRATE JUDGE
On March 23, 2011, the pro se1 petitioner, Kevin M. Phillips,
filed a habeas petition pursuant to 28 U.S.C. § 2254 asserting four
arguments in support of overturning his sentence.
the petitioner argues: (1) an officer did not read him his rights;
(2) he was threatened and manipulated by an officer; (3) an officer
falsified information to the courts; and (4) attorneys would not
fight for his motions or raise certain issues.
On May 26, 2011,
the petitioner filed a motion for a sentence reduction.
response to the Court’s order to show cause, issued on May 12,
2011, the respondent filed a motion for summary judgment on June 7,
respondent argues that the petitioner’s claims are all barred for
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
failure to exhaust state remedies.
The petitioner then filed two
responses, both of which were docketed on June 23, 2011.
On July 13, 2011, Magistrate Judge John S. Kaull issued a
report and recommendation recommending that the respondent’s motion
for summary judgment be granted and that the petitioner’s § 2254
petition be denied and dismissed. On July 14, 2011, the magistrate
judge issued an amended report and recommendation clarifying that
although the original report and recommendation provided a ten (10)
day window of opportunity to file written objections, pursuant to
28 U.S.C. § 636(b)(1)(C), any party may file written objections to
his proposed findings and recommendations within fourteen (14) days
after being served with a copy of the magistrate judge’s amended
Neither the petitioner nor the respondent filed
On July 19, 2011, the magistrate judge issued a second report
and recommendation recommending that the petitioner’s motion for a
sentence reduction be dismissed.
Again, the magistrate judge
instructed that pursuant to 28 U.S.C. § 636(b)(1)(C), any party may
recommendations within fourteen (14) days after being served with
a copy of the magistrate judge’s amended recommendation.
the petitioner nor the respondent filed objections.
reasons set forth below, this Court finds that both reports and
recommendations of the magistrate judge should be affirmed and
adopted in their entirety.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made. However, failure
to file objections to the magistrate judge’s proposed findings and
recommendation under the standards that the district court believes
are appropriate and, under these circumstances, the parties’ right
to de novo review is waived.
825 (E.D. Cal. 1979).
See Webb v. Califano, 468 F. Supp.
Because no objections were filed in this
case, this Court reviews each report and recommendation of the
magistrate judge for clear error.
Amended Report and Recommendation that § 2254 Motion Be Denied
As grounds for his § 2254 petition, the petitioner states that
he needs to be at home to assist his elderly father and his wife,
who has struggled without his income.
asks to be put on probation.
As relief, the petitioner
As the magistrate judge noted, the
petition includes multiple statements from friends and family in
petitioner’s motion for a reduced sentence seeks the same relief.
In its motion for summary judgment, the respondent argues that
the petitioner must first raise the issues presented in his § 2254
petition in state court before they can be reviewed by a federal
In response to the motion for summary judgment, the
petitioner asks the Court to ignore the respondent’s allegations
and he reiterates the arguments made in his petition.
Title 28, United States Code, Section 2254(b) provides that
absent a valid excuse, a state prisoner must exhaust his remedies
in state court before pursuing federal habeas relief.
substance of his claim to the state’s highest court.
Evatt, 105 F.3d 907 (4th Cir. 1997).
Until the state has been
given the opportunity to consider the issue and afford a remedy if
relief is warranted, “federal courts in habeas proceedings by state
prisoners should stay their hand.” Durkin v. Davis, 538 F.2d 1037,
1041 (4th Cir. 1976) (quoting Gilstrap v. Godwin, 517 F.2d 52, 53
(4th Cir. 1975)).
The petitioner bears the burden of proving
See Breard v. Pruett, 134 F.3d 615, 619 (4th Cir.
However, the federal court may not grant habeas relief
unless the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The phrase “‘adjudication on the merits’ in
section 2254(d) excludes only claims that were not raised in state
court, and not claims that were decided in state court, albeit in
a summary fashion.”
Thomas v. Taylor, 170 F.3d 466, 475 (4th Cir.
Nevertheless, habeas corpus relief is not warranted unless the
constitutional error at trial had a “substantial and injurious
effect or influence in determining the jury’s verdict.”
Abrahamson, 507 U.S. 619, 637 (1993); Richmond v. Polk, 375 F.3d
309 (4th Cir. 2004).
Accordingly, “[u]nder this standard, habeas
petitioners may obtain plenary review of their constitutional
claims, but they are not entitled to habeas relief based on trial
error unless they can establish that it resulted in ‘actual
Brecht, 507 U.S. at 637.
This Court agrees that the petitioner has failed to follow
proper procedure in this case. A review of the record reveals that
the only issue the petitioner raised at the state court level is
that the trial court abused its discretion by refusing to grant
probation to the prisoner.
None of the four claims presented in
the § 2254 petition were raised at the state court level, thus,
they cannot be heard before this Court.
Report and Recommendation that Motion for Sentence Reduction
requests that this Court unilaterally change his sentence so that
he may tend to his sick father and financially support his family.
The respondent did not file a response to this motion.
agrees that because the petitioner was sentenced by the state court
and is currently in state custody, the correct vehicle for him to
challenge the length of his sentence and ask for a reduction would
be to raise this issue in a 28 U.S.C. § 2254 motion for habeas
corpus, which he did not do.
This Court further agrees with the
magistrate judge’s finding that even if the petitioner had raised
this issue in his § 2254 motion, tending to a sick family member
and providing financial support do not amount to allegations that
the petitioner is in state custody in violation of the Constitution
or laws or treaties of the United States. Thus, this request would
have been properly denied even if it had been raised in the § 2254
Because the parties have not objected to either the amended
report and recommendation of the magistrate judge regarding the §
2254 motion or the report and recommendation regarding the motion
for a sentence reduction, and because this Court finds that the
magistrate judge’s recommendations are not clearly erroneous, the
rulings of the magistrate judge is hereby ADOPTED and AFFIRMED in
Accordingly, for the reasons set forth above, the
respondent’s motion for summary judgment (Doc. 22) is GRANTED, the
petitioner’s § 2254 motion (Doc. 1) is DENIED and DISMISSED WITH
PREJUDICE, and the petitioner’s motion for sentence reduction (Doc.
20) is DISMISSED.
It is ORDERED that this civil action be
DISMISSED and STRICKEN from the active docket of this Court.
Moreover, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the reports and recommendations in this action would result in a
waiver of appellate rights.
Thus, the petitioner’s failure to
recommendations bars the petitioner from appealing the judgment of
this Court. See 18 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d
841, 845 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
certificate of appealability in this matter.
Court finds that the petitioner has not made a “substantial showing
A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
See Miller-El v. Cockrell, 537 U.S. 322, 336-
Upon review of the record, this Court finds that the
petitioner has not made the requisite showing.
petitioner is DENIED a certificate of appealability.
The petitioner may, however, request a circuit judge of the
United States Court of Appeals for the Fourth Circuit to issue the
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
August 10, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?