Elswick v. Plumley

Filing 55

ORDER adopting the 53 Proposed Findings and Recommendations; denies the 4 Petition for a Writ of Habeas Corpus and 40 Amended Petition; granting the Respondent's 48 Motion to Dismiss; dismisses, with prejudice; and directs that this action be removed from the docket. The court denies a certificate of appealabilty. Signed by Judge Joseph R. Goodwin on 7/25/2022. (cc: counsel of record; any unrepresented party) (lca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RAYMOND ELSWICK,
Petitioner,
v.

CIVIL ACTION NO. 2:14-cv-29300

MARVIN PLUMLEY,
Respondent.
ORDER
This action was referred to the Honorable Cheryl A. Eifert for submission of
proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C.
§ 636. On June 22, 2022, Judge Eifert submitted her Proposed Findings &
Recommendation [ECF No. 53] (“PF&R”) recommending that the court DENY
Petitioner’s Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and
Amended Petition [ECF Nos. 4, 40]; GRANT Respondent’s Motion to Dismiss and for
Judgment on the Pleadings [ECF No. 48]; and DISMISS, with prejudice, this matter
from the court’s docket.
A district court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C) (emphasis added); see Fed. R. Civ. P. 72(b)(3). Failure
to file specific objections pursuant to 28 U.S.C. § 636(b)(1)(C) . . . may be construed by

any reviewing court as a waiver of such objection.” Veney v. Astrue, 539 F. Supp. 2d
841, 845 (W.D. Va. 2008); see United States v. Midgette, 478 F.3d 616, 622 (4th Cir.
2007) (“[T]o preserve for appeal an issue in a magistrate judge’s report, a party must
object to the finding or recommendation on that issue with sufficient specificity so as
reasonably to alert the district court of the true ground for the objection.”). General
objections do not meet the requirements set forth in 28 U.S.C. § 636(b)(1)(C) or Rule
72(b), and, therefore, constitute a waiver of de novo review. See Howard’s Yellow

Cabs, Inc. v. United States, 987 F. Supp. 469, 474 (W.D. N.C. 1997).
The PF&R submitted by Judge Eifert gave notice to the parties that they had a
total of seventeen days from the filing of the PF&R within which to file with the
Clerk of this Court, specific written objections, identifying the portions of the PF&R
to which objection is made, and the basis of such objection. Despite this guidance, the
Petitioner’s “objections” fail to make specific objections or identify any alleged errors
other than a general notion that the Magistrate Judge “has disregarded the laws.”
[ECF No. 54]. Therefore, the court FINDS that a de novo review of the PF&R is not
required.
The court accepts and incorporates herein the PF&R and orders judgment
consistent therewith. The court DENIES Petitioner’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 and Amended Petition [ECF Nos. 4, 40];
GRANTS Respondent’s Motion to Dismiss and for Judgment on the Pleadings [ECF
No. 48]; DISMISSES, with prejudice; and DIRECTS that this action be removed from
the docket.

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The court has additionally 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.” Id. § 2253(c)(2). 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 court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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July 25, 2022