Dreyfuse v. Pszczolkowski et al

Filing 33

MEMORANDUM OPINION AND ORDER denying Petitioner's 32 Objections; adopting and incorporating the 27 Proposed Findings and Recommendations by Magistrate Judge Aboulhosn; denying Petitioner's 2 Motion for Stay and Abeyance; granting Resp ondents' 18 Motion to Dismiss; and dismissing without prejudice Petitioner's 7 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody; directing the Clerk to remove this matter from the Court's docket. Signed by Judge Robert C. Chambers on 2/27/2017. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

EDWARD JESS DREYFUSE,
Petitioner,
v.

CIVIL ACTION NO. 3:16-06717

KAREN PSZCZOKOWSKI, Warden, et al.,
Respondents.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner’s Objections (ECF No. 32) to the Magistrate Judge’s
Proposed Findings and Recommendations (PF&R).

For the following reasons, the Court

DENIES Petitioner’s objections and ADOPTS AND INCORPORATES the Magistrate Judge’s
PF&R (ECF No. 27) filed on January 6, 2017.
I.

Background
The PF&R provides a thorough analysis of Petitioner’s case that the Court declines to

reiterate here. Petitioner was convicted by a jury in state court of First Degree Murder and
Burglary.

See Proposed Findings & Recommendation, ECF No. 27, at 1.

Petitioner was

sentenced to an indeterminate sentence between 1 and 15 years for the burglary conviction and life
without mercy for the murder conviction, to run consecutively. Id. at 2. Although Petitioner
filed a direct appeal in December of 2014, he moved to withdraw the appeal in January of 2016.
Id. at 2, 6. The West Virginia Supreme Court granted this motion in February of 2016. Id. at 7.
Petitioner filed his first Writ of Habeas Corpus in the Circuit Court of Cabell County in August of
2015, but the petition was dismissed as premature due to the pending direct appeal at the time. Id.

at 3, 5. Petitioner’s Second Writ of Habeas Corpus in the Circuit Court of Cabell County was
filed in January of 2016. Id. at 6. This state habeas proceeding is still pending. Id. at 11.
Petitioner filed the instant federal habeas petition on July 22, 2016. Id. Immediately,
Petitioner filed a Motion for Stay and Abeyance so that he could continue his state habeas
proceeding but not forfeit his right to federal habeas relief. Id. Respondents filed a Motion to
Dismiss for Failure to Exhaust, which the Magistrate Judge recommended granting in its January
6, 2017 Order.

Petitioner timely filed three objections to the Magistrate Judge’s Order,

challenging the denial of Petitioner’s motion for leave to amend, the denial of appointment of
counsel, and the denial of issuing a discovery order. See Pet’r’s Objs., ECF No. 32. None of
these objections reference actions and recommendations taken in the Magistrate Judge’s Order.
However, the Court liberally construes a pro se filing and will address the objections to afford
Petitioner the utmost regard to justice.
II.

Legal Standard
Pursuant to 28 U.S.C. § 636(b)(1), the Court must conduct a de novo review of the

Magistrate Judge’s proposed findings to which an objection is made. 28 U.S.C. § 636(b)(1)(C).
“A judge of the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Because Petitioner filed objections in this
case, the Court has conducted a de novo review of the Magistrate Judge’s report. For the sections
of the PF&R to which no objection is made, the Court will uphold the Magistrate Judge’s findings
unless they are “clearly erroneous” or “contrary to law.” See Green v. Ballard, Civ. No. 3:021348, 2015 WL 1612198, at*2 (S.D.W. Va. Apr. 10, 2015) (citing Webb v. Califano, 468 F. Supp.
825, 828 (E.D. Cal. 1979)).
III.

Discussion

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a. Magistrate Judge’s Unchallenged Recommendation
The entirety of the PF&R discusses whether Petitioner’s federal habeas corpus petition is
timely because another state habeas action remains pending.

See Proposed Findings &

Recommendation, ECF No. 27, at 18. The Magistrate Judge highlights that Petitioner admits that
his claims are unexhausted, but Petitioner asserts that he should be excused from the exhaustion
requirement due to delays in the state’s proceedings. Id. The Magistrate Judge thoroughly
discusses why federal courts refrain from ruling on pending state habeas cases and the importance
of complete exhaustion of state claims before turning to federal court. Id. at 21. Moreover, the
PF&R explains that Petitioner has not met the requirements for an excusal of exhaustion under the
factors applied from Barker v. Wingo, 407 U.S. 514 (1972). Id. at 22-27.
The Court finds it unnecessary to go into another explanation that parallels the PF&R.
Petitioner failed to challenge the Magistrate Judge’s findings and determinations that Petitioner’s
state habeas claims are unexhausted, that any delay does not rise to a due process violation, that
Petitioner remains fully able to file a federal habeas petition after conclusion of the state habeas
proceedings, and that Petitioner will not be prejudiced by being forced to exhaust his claims. The
Court has reviewed the PF&R and concludes that the Magistrate Judge’s findings are not contrary
to law or clearly erroneous. By failing to exhaust any of Petitioner’s constitutional claims in the
state habeas proceeding, dismissal is appropriate. See Rhines v. Weber, 544 U.S. 269, 275-77
(2005) (explaining that a stay or abeyance should not be “employed too frequently” and dismissal
can better reflect Antiterrorism and Effective Death Penalty Act’s objectives).

Because

Petitioner’s one-year statute of limitations under 28 U.S.C. § 2244(d)(1) is currently tolled until
the conclusion of the state habeas proceeding, Petitioner is free to file constitutional claims under
a federal habeas petition once the pending state proceedings have finished. Under this analysis,

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the Court ADOPTS AND INCORPORATES the Magistrate Judge’s PF&R as it recommends
dismissal of the instant petition.

Petitioner’s objections all involve issues outside of the

Magistrate Judge’s Order, which the Court is not required to address. However, because the Court
liberally construes a pro se document and to afford the best explanation to Petitioner moving
forward, the Court will address Petitioner’s objections briefly.
b. Petitioner’s Objections
Petitioner’s first objection appears to actually object to a previous Court Order denying
Petitioner’s Motion for Leave to Amend his habeas petition. See Pet’r’s Objs., ECF No. 32, at 1.
Petitioner quotes from the Court’s Order issued on February 3, 2017—an order separate from the
Magistrate Judge’s PF&R that Petitioner was directed to object. See Court Order, ECF No. 31.
If Petitioner is seeking the Court to reconsider its previous Order, the Court DENIES
reconsideration and directs Petitioner to the Court Order for explanation as to why an amendment
to the habeas petition to add a claim for actual innocence is futile.1 As the Magistrate Judge
recommended dismissing the petition based off failure to exhaust state proceedings, the ability to
amend the petition would have no effect as it does not resolve the procedural deficiency in the
timing of the petition. When Petitioner timely files his federal habeas petition—after a state
proceeding has concluded—Petitioner is free to assert his constitutional claims and a claim for

1

Although Petitioner would like to characterize his offense as a capital offense in which
he should be afforded greater protections and liberalities as under Schulp v. Delo, the Court
disagrees. As stated in its previous Order, “the Supreme Court has emphasized that demonstrating
actual innocence … is not itself a constitutional claim upon which habeas relief may be granted in
a non-death penalty case.” Smith v. Ballard, No. 2:09-CV-00242, 2010 WL 3835715, at *27
(S.D.W. Va. Aug. 24, 2010) (emphasis added). Petitioner argues that his life sentence without
mercy is equivalent to a sentence to death. Pet’r’s Objs., ECF No. 32, at 3. However, in Smith,
the court denied equating a sentence of two life sentences to the death penalty, and the Court will
not change course here. See Smith, 2010 WL 3835715, at *27.
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actual innocence if necessary to avoid the procedural bar to relief. However, none of this
precludes the Court from dismissing the instant petition as premature for failure to exhaust.
Petitioner’s second objection challenges the Magistrate Judge’s denial of appointment of
counsel in a subsequent order to the PF&R. See Court Order, ECF No. 28; Pet’r’s Objs., ECF
No. 32, at 5. As the Court must dismiss the federal habeas petition as premature, the appointment
of counsel at this time is unnecessary. Petitioner’s second objection is DENIED.
Petitioner’s third objection challenges the failure to order discovery. Pet’r’s Objs., ECF
No. 32, at 7. Again, this objection does not challenge a determination within the Magistrate
Judge’s PF&R. Because the Court dismisses the federal habeas petition as premature, an order
for discovery is unnecessary. Petitioner’s third objection is DENIED.
c. Certificate of Appealability
The Court additionally 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.” Id. at § 2253(c)(2). The standard is satisfied only upon a
showing that reasonable jurists would find 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.
IV.

Conclusion
Accordingly, Petitioner’s Objections (ECF No. 32) are DENIED, and the Court ADOPTS

AND INCORPORATES the Magistrate Judge’s Proposed Findings and Recommendations (ECF

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No. 27) in full. The Court, thus, DENIES Petitioner’s Motion for Stay and Abeyance (ECF No.
2), GRANTS Respondents’ Motion to Dismiss (ECF No. 18), and DIMSISSES without
prejudice Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (ECF No. 7). The Clerk is DIRECTED to remove this matter from the Court’s
docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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February 27, 2017