Rabb v. McBride
Filing
76
MEMORANDUM OPINION AND ORDER denying petitioner's 61 MOTION for Reconsideration and Clarification of the 60 Judgment Order. Signed by Judge John T. Copenhaver, Jr. on 5/27/2011. (cc: petitioner; attys; United States Magistrate Judge; the appellate case manager) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAVID RABB,
Petitioner
v.
CIVIL ACTION NO. 2:09-0159
DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Respondent
MEMORANDUM OPINION AND ORDER
Pending is petitioner’s motion for reconsideration and
clarification of the Judgment (“motion to reconsider”), filed
April 11, 2011.
On February 24, 2011, Mary E. Stanley, United States
Magistrate Judge, entered her proposed findings and
recommendation (“PF&R”).
On February 28, 2011, the court granted
respondent’s motion for an extension of time to object to the
PF&R.
The deadline for objections was March 21, 2011.
The court
received timely objections from both petitioner and respondent.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any
responses to the objections were due within 14 days.
On March 31, 2011, the court entered its Judgment
denying petitioner’s request for relief pursuant to 28 U.S.C. §
2254.
Petitioner now asks the court to “allow for . . . [his]
‘Response to Respondent’s Objections.’”
(Mot. at 1).
Petitioner notes that he prepared, and had ready for
mailing on April 4, 2011, a copy of the Response to Respondent’s
Objections.
Nevertheless, the court had not, as of May 9, 2011,
found the document in the record.
The court, accordingly,
entered an order on that date providing petitioner leave to file
his Response to Respondent’s Objections no later than May 20,
2011.
The docket reflects that petitioner mailed the Response to
Respondent’s Objections on that date.
They were received and
filed May 23, 2011.
Petitioner asserts, inter alia, that respondent’s
objections to the PF&R incorrectly referenced the 1999 version of
the statute governing petitioner’s offenses.
Inasmuch as
petitioner’s criminal misconduct occurred in January 1997, he
asserts his collateral attack should be analyzed with reference
to the criminal statute then in effect.
immaterial.
The contention is
Irrespective of the version relied upon by
respondent, the court analyzed the correct version of the
statute, namely, that which was in effect in January 1997.
The
remainder of petitioner’s Response to Respondent’s Objections,
along with his motion to reconsider, in no way undermine the
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analysis found in the March 31, 2011, memorandum opinion and
order that accompanied the Judgment entered the same day denying
petitioner’s request pursuant to 28 U.S.C. § 2254.
The court, accordingly, ORDERS that the motion to
reconsider be, and it hereby is, denied.
The Clerk is directed to forward copies of this written
opinion and order to the pro se petitioner, all counsel of
record, the United States Magistrate Judge and the appellate case
manager.
DATED: May 27, 2011
John T. Copenhaver, Jr.
United States District Judge
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