Dixon v. Ballard

Filing 21

MEMORANDUM OPINION AND ORDER: The Court OVERRULES Plaintiff's Objections to the Proposed Findings and Recommendation of Magistrate Judge R. Clarke VanDervort; ADOPTS the 17 Proposed Findings and Recommendation; GRANTS Defendant's 11 MOT ION to Dismiss; and DISMISSES the Section 2254 Petition. The Court DENIES a certificate of appealability. The Clerk is DIRECTED to remove this matter from the Court's docket. Signed by Senior Judge David A. Faber on 9/11/2014. (cc: Plaintiff, Pro Se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
DAVID LAWRENCE DIXON,
Plaintiff,
v.

CIVIL ACTION NO. 1:13-07498

DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
findings of fact and recommendations regarding disposition
pursuant to 28 U.S.C. § 636(b)(1).

Whereupon, Magistrate Judge

VanDervort submitted his Findings and Recommendation (“PF&R”) to
the court on May 27, 2014, in which he recommended that this court
grant defendant’s motion to dismiss and remove this matter from
the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days plus three mailing days in
which to file any objections to Magistrate Judge VanDervort's
Findings and Recommendations.

The court need not conduct a de

novo review of the PF&R 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.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

On June 12, 2014, plaintiff filed his objections to the
magistrate judge's Findings and Recommendation.

Much of

plaintiff’s eleven-page filing is devoted to restating the
arguments he has previously raised, without addressing the
specific ground on which the magistrate judge recommended
dismissal:

that the instant petition must be dismissed as an

unauthorized second or successive Section 2254 petition because
of Dixon’s prior such filing, Dixon v. McBride, Civil Action No.
1:03-00901.

Indeed, many of plaintiff’s objections seek to

reopen issues that were decided in the earlier Section 2254
action, i.e., that plaintiff’s second and third grounds for
relief in that proceeding, which mirror the second and third
grounds for relief in this case, should be treated as exhausted
because they were procedurally defaulted.

See Dixon v. McBride,

Civil Action No. 1:03-00901, Doc. No. 28.

Dixon’s appeal of this

court’s decision in that regard was dismissed.

See Dixon v.

McBride, 96 F. App’x 918 (4th Cir. 2004).
For example, Dixon writes: “The core issue regarding this
petition is being overlooked by the Magistrate: did it satisfy
the exhaustion requirements rule announced in Picard v. Connor?
Answering in the affirmative, the next question direct [sic] us
to look at the dismissal fo the federal petition for procedural
default allegations, because the dismissal of the first habeas
petition did not create a nexus to the second petition.”
Objections at p. 8 (emphasis in original).
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Because Magistrate

Judge VanDervort correctly determined that the instant petition
was an unauthorized second or successive § 2254 petition, he did
not need to consider Dixon’s arguments regarding exhaustion.
Accordingly, his objections are without merit and, therefore,
OVERRULED.
As to plaintiff’s objections concerning the delay
surrounding his second state habeas petition, currently pending in
the Circuit Court of McDowell County, Dixon v. McBride, Case No.
05-C-93, they are not properly before this court.

If plaintiff

wishes to speed up the state court action, he should file a writ
of mandamus with the Supreme Court of Appeals of West Virginia.
See Rydbom v. Ballard, Civil Action No. 6:07-cv-00711, 2009 WL
305079, *2 (S.D.W. Va. Feb. 6, 2009).
Dixon also objects to the following statement in the
PF&R: “The undersigned declines to transfer the instant Petition
to the Fourth Circuit Court of Appeals as there is no indication
or argument that Petitioner can satisfy Section 2244(b)(2).”
at p. 16 n. 6.

PF&R

Having reviewed the record in this case, the court

finds this objection to be without merit and, accordingly, it is
OVERRULED.
In conclusion, the court notes that Dixon’s objections
are largely unintelligible and contain many statements that are,

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in fact, not true.*

However, even giving his filing a liberal

construction, his objections herein are without merit.
For the foregoing reasons, plaintiff’s objections are

OVERRULED.

The court ADOPTS the findings and conclusions

contained in Magistrate Judge VanDervort’s PF&R, GRANTS
defendant’s motion to dismiss, and DISMISSES the Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus.
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.

*

For example, plaintiff objects that Magistrate Judge
VanDervort did not consider his 2002 state habeas petition.
Objections at p. 8. This statement is patently untrue as the
PF&R specifically discussed Dixon’s Petition for Writ of Habeas
Corpus filed in the Circuit Court of McDowell County on February
4, 2002. See PF&R at pp. 5-6.
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The Clerk is DIRECTED to remove this matter from the
court’s docket and to send copies of this Memorandum Opinion and

Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED this 11th day of September, 2014.
ENTER:

David A. Faber
Senior United States District Judge

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