Tooley v. Ballard
Filing
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MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's 6 objections; ADOPTS the 5 Proposed Findings and Recommendation of Magistrate Judge VanDervort; DISMISSES plaintiff's 1 Section 2254 petition; DENIES plaintiff's 1 motion for stay/abeyance and DIRECTS the Clerk to remove the matter from the court's docket. Signed by Senior Judge David A. Faber on 3/27/2012. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JAMES LEE TOOLEY,
Plaintiff,
v.
CIVIL ACTION NO. 1:09-cv-0183
DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody.
By Standing Order, the action was referred to United
States Magistrate R. Clarke VanDervort for submission of findings
of fact and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge VanDervort submitted his
Proposed Findings and Recommendation (“PF&R”) to the court on
November 29, 2011, in which he recommended that this court
dismiss plaintiff’s petition under 28 U.S.C. § 2254, deny
plaintiff’s motion for stay/abeyance, and remove the matter from
the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days plus three mailing days
in which to file any objections to Magistrate Judge VanDervort’s
Findings and Recommendations.
On December 6, 2011, plaintiff
filed timely objections to the Magistrate Judge's Findings and
Recommendation.
I.
Background
Following a jury trial that concluded on August 18, 2005,
in the Circuit Court of Mercer County, West Virginia, James Lee
Tooley was convicted of First Degree Murder with the
recommendation of mercy, Burglary, and Conspiracy to Commit
Burglary.
On November 2, 2005, Tooley was sentenced “to the
penitentiary for the remainder of his natural life for the
offense of Murder-First Degree with the possibility of parole in
15 years, 1 - 15 years for the offense of Burglary, and 1 - 5
years for the offense of Conspiracy to Commit Burglary,” all
sentences to run consecutively.
Tooley appealed his conviction
and sentence to the Supreme Court of Appeals of West Virginia
and, by Order entered on May 24, 2006, that court refused
Tooley’s petition.
Shortly thereafter, on June 11, 2006, the
Circuit Court of Mercer County amended Tooley’s sentence to have
the sentences on the three counts of conviction run concurrently.
On May 30, 2007, Tooley filed a Petition for Writ of
Habeas Corpus in the Circuit Court of Mercer County, Tooley v.
McBride, Case No. 07-C-368.
By Order entered on May 20, 2010,
the Circuit Court granted Tooley’s habeas petition, reversed his
convictions on all counts, and granted a new trial on those
charges.
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The next day, the State of West Virginia filed a Notice
of Intent to Appeal and a Motion for Stay of Order Setting Aside
Petitioner’s Conviction Pending Disposition of Appeal.
7, 2010, the Motion for Stay was granted.
On June
Thereafter, on
September 20, 2010, the State of West Virginia filed a Petition
for Appeal from the Circuit Court’s order.
While the appeal
remained pending, on September 15, 2011, Tooley entered a Kennedy
plea1 to Second Degree Murder, a lesser-included offense of First
Degree Murder.
The State dismissed the remaining counts and, on
September 26, 2011, the Supreme Court of Appeals granted the
State’s Motion to Dismiss Appeal.
On November 10, 2011, Tooley
was sentenced to a term of imprisonment of 16 years with credit
for time served.
On February 27, 2009, while his state habeas petition
remained pending, Tooley filed the instant 28 U.S.C. § 2254
petition.
The § 2254 petition contains the following grounds for
habeas relief: 1) ineffective assistance of counsel; 2) denial of
Tooley’s right to be taken before a local magistrate in a timely
manner, in violation of West Virginia Code § 62-1-5(a)(1) and
West Virginia Rule of Criminal Procedure 5(a); 3) violation of
Tooley’s right to confront the witnesses against him; 4) “DNA
1
A Kennedy plea allows a defendant to consent to the
imposition of a sentence without admitting participation in the
crime if the defendant intelligently concludes that his interests
require a guilty plea and the record supports the conclusion that
a jury could convict him. Kennedy v. Frazier, 178 W. Va. 10, 357
S.E. 2d 43 (W. Va. 1987).
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Testing will support the Petitioner’s contentions of his
innocence;” 5) no change of venue; 6) Double Jeopardy; 7)
prejudice; and 8) improper instructions.
Support of § 2254 Petition (Doc. # 2).
Tooley’s Memorandum in
Tooley also filed a
Motion for Stay/Abeyance in which he asked the court to stay this
matter until he had exhausted his claims in state court.
Given that the Circuit Court of Mercer County granted the
habeas relief sought by Tooley, Magistrate Judge VanDervort
concluded that the instant § 2254 petition was moot.
Therefore,
he recommended that the district court deny the motion for
stay/abeyance, dismiss the § 2254 petition, and remove the case
from the court’s docket.
II.
Objections
Although Tooley styled his filing as an “Objection
Denying Motion for Stay/Abeyance,” the “objections” he makes are
not directed to anything contained within the PF&R.
Instead,
Tooley states:
Petitioner informs this Honorable Court
that without some type of assistance before and
after his release, he contends that it will be a
harder challenge to become a successful,
productive member of society added to the stress
of adjusting back into the free world of our
society, without some type of help to prepare him
to re-enter society.
The Magistrate Judges [sic]
Recommendation, fails to identify any State or
Federal re-entry programs to convicted persons
who are returning to society, therefore the
Petitioner Objects to the absence of such
information in the recommendation. The
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Magistrate’s Recommendation, identifies that the
Petitioner’s conviction has been overturned and
that a plea agreement thereafter resulted. As a
direct result of the plea agreement the
Petitioner will discharge his sentence within the
next eleven (11) months. The Petitioner’s utmost
desire is to have a successful re-entry into
society. To date however, no State or Federal
Representative has offered any information
regarding resources available to the Petitioner
for the purpose of ensuring his successful reentry. Without at least some resources being
provided to the Petitioner, successful re-entry
is almost impossible. It should be the soverign
[sic] Duty of this Court, to Ensure that the
final disposition of this case, include
affirmative action identifying and/or providing
programs, funding information toward successful
re-entry into society, of which is absent from
the Magistrate’s recommendation, therefore, the
Petitioner Objects to the adoption of the
Magistrate’s recommendation, without adding the
assistance toward re-entry as set out above and
is in the interest of Justice would allow.
Objections at 2-3 (Doc. # 6).
A court need not conduct a de novo review when a party
“makes general and conclusory objections that do not direct the
court to a specific error in the magistrate's proposed findings
and recommendations.”
Cir. 1982).
Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Plaintiff’s objections raise issues that are
completely different than those he sets forth in his actual §
2254 petition.
Therefore, even assuming that there were some
merit to the arguments Tooley makes in his objections, the
objections do not direct the court to a specific error in
Magistrate Judge VanDervort’s PF&R.
Accordingly, pursuant to
Orpiano, the objections are properly OVERRULED.
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Turning to the merits, however, it is clear that the
arguments advanced by Tooley still fail.
His objections concern
issues that are not cognizable under § 2254.2
Section 2254
authorizes a federal court to review a habeas petition only if
the claims raised therein assert a right to release from custody
on federal law grounds.
See 28 U.S.C. § 2254 (providing that a
“court shall entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States”);
see also Israel v. Dir., Virginia Dep’t of Corr., 59 Fed. Appx.
572, 2003 WL 1085766, *1 (4th Cir. Mar. 12, 2003) (holding that
state prisoner’s claim that he was improperly deemed ineligible
for parole arose under § 1983 rather than 28 U.S.C. § 2254
because prisoner “does not seek release from custody”).
Tooley’s
objections are not directed toward securing his release from
custody but, rather, are concerned with the alleged lack of
rehabilitative opportunities available to him.
2
A federal habeas
Even if alleged deficiencies in rehabilitative services
offered to state inmates were cognizable under 28 U.S.C. § 2254
(and it is clear they are not), dismissal would still be
appropriate because plaintiff has not exhausted any such claims
prior to bringing them in federal court. Rose v. Lundy, 455 U.S.
509, 520 (1982) (noting that the Supreme Court has sent a “simple
and clear instruction to potential litigants: before you bring
any claims to federal court, be sure that you first have taken
each one to state court.”).
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action under § 2254 is not the proper vehicle for asserting such
rights and the petition should be dismissed.
To the extent that Tooley may be attempting to advance a
civil rights claim under the guise of § 2254, the Court notes
that 42 U.S.C. § 1983 is not an independent source of
constitutional rights.
See, e.g., Cabaniss v. City of Riverside,
231 Fed. Appx. 407, 412 (6th Cir. Apr. 6, 2007).
Accordingly,
“in order to bring a § 1983 claim, a plaintiff must begin by
identifying a violation of an existing constitutional right.”
Id. (citing Waters v. City of Morristown, 242 F.3d 353, 358-59
(6th Cir. 2001)).
This Tooley has failed to do.
Tooley’s inability to point to any federal requirement,
constitutional or otherwise, that requires a prison to provide
rehabilitation and/or reentry programs to inmates is fatal to any
§ 1983 claim.
There simply is no such requirement.
See Beck v.
Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) (state has no
constitutional obligation to provide basic educational or
vocational training programs to prisoners) (internal citations
omitted); Acree v. Clark, 804 F.2d 1250, 1986 WL 18023, *2 fn
(4th Cir. Nov. 10, 1986) (“Acree alleged that he was denied
access to alcohol rehabilitation programs and vocational
services.
This claim fails because there is no constitutional
right to such rehabilitation programs.”); Hoptowit v. Ray, 682
F.2d 1237, 1254-55 (9th Cir. 1982) (lack of adequate vocational
and educational programs at penitentiary does not violate Eighth
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Amendment); McCray v. Sullivan, 509 F.2d 1332, 1335 (5th Cir.
1975) (failure to provide rehabilitation, by itself, does not
constitute a violation of Eighth Amendment); Joe v. Ozmint, C.A.
No. 2:08-585-PMD-RSC, 2009 WL 3124425, *16 (D.S.C. Sept. 29,
2009) (“[T]here is no constitutional requirement that a prison
provide rehabilitation programs to inmates.”); Blevins v.
Werholtz, 2009 WL 539913, *4 (D. Kan. Mar. 4, 2009) (“The general
assertion that plaintiff is not receiving programs to gain parole
or prepare for release also fails to state a federal
constitutional claim.”); Abdul-Akbar v. Department of Corrs., 910
F. Supp. 986, 1002 (D. Del. 1995) (no right to drug treatment,
employment, or other rehabilitation, education, or training
programs in prison).
Plaintiff has failed to allege a
constitutional deprivation and the claim should be dismissed.
Finally, as to any argument that Tooley might somehow
have a right to the assistance he seeks under state law, he has
not demonstrated how his failure to receive that assistance
implicates the deprivation of a federal constitutional right,
i.e., equal protection or due process.
For all these reasons,
Tooley’s objections are OVERRULED.
Based on the foregoing, the court adopts the Findings and
Recommendations of Magistrate Judge VanDervort, DISMISSES
plaintiff’s petition under 28 U.S.C. § 2254, DENIES plaintiff’s
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motion for stay/abeyance, and DIRECTS the Clerk to remove the
matter from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED this 27th day of March, 2012.
ENTER:
David A. Faber
Senior United States District Judge
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