Ward v. Ames

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Robert W. Trumble re: 21 Report and Recommendation by Magistrate Judge, as more fully stated therein; dismissing without prejudice Petitioner's 1 Petition and directing that this case is striken from the Court's active docket. Signed by Chief District Judge Gina Marie Groh on 3/31/2021. (cc: pro se Petitioner by certified mail, return receipt requested at his last known address) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON
PHILLIP A. WARD,
Petitioner,
v.

CIVIL ACTION NO.: 3:20-CV-345
(GROH, C.J. by special designation)

DONALD F. AMES,
Superintendent, Mount Olive
Correctional Complex,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
Currently before the Court is a Report and Recommendation (“R&R”) entered by
United States Magistrate Judge Robert W. Trumble on February 1, 2021. ECF No. 21.
Pursuant to the Southern District’s Standing Order [ECF No. 4] and the Chief Judge of
the Fourth Circuit’s Designation [ECF No. 16], the Undersigned was assigned this civil
action on October 22, 2020. This action was subsequently referred to Magistrate Judge
Trumble for submission of an R&R. Therein, Magistrate Judge Trumble recommends that
this Court dismiss the Petitioner’s Petition without prejudice. The Petitioner timely filed
his objections to the R&R on February 12, 2020. ECF No. 23. Accordingly, this matter
is now ripe for adjudication.
I. BACKGROUND
On May 18, 2020, Phillip A. Ward (“Petitioner”), filed a Petition for Habeas Corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. On June 16, 2020, the Petitioner filed what
this Court construes as a supplement to his Petition. ECF No. 12. A review of the Petition

and supplement reveal that the Petitioner alleges six grounds for relief. More particularly,
the Petitioner asserts that 1) the Clerk of Court for the Southern District has impeded the
Petitioner’s access to the Court; 2) his Sixth Amendment right to cross examine witnesses
was violated; 3) the Clerk of Court for the Southern District has improperly influenced the
judiciary to Petitioner’s detriment; 4) his rights under the Confrontation Clause were
violated; 5) the prosecuting attorney’s comments during closing arguments violated
Petitioner’s right to the presumption of innocence and constituted prosecutorial
misconduct; and 6) he received ineffective assistance of counsel at trial. See ECF Nos.
1 & 12. Upon reviewing the record, the Court finds that the background and facts as
explained in the R&R accurately and succinctly describe the circumstances underlying
the Petitioner’s claims. For ease of review, the Court incorporates those facts herein.
II. LEGAL STANDARDS
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). Further, failure to file timely objections constitutes a waiver of de novo review
and the Petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir.1984). Pursuant to this Court’s local rules, “written objections shall identify
each portion of the magistrate judge’s recommended disposition that is being challenged
and shall specify the basis for each objection.” LR PL P 12(b). The local rules also

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prohibit objections that “exceed ten (10) typewritten pages or twenty (20) handwritten
pages, including exhibits, unless accompanied by a motion for leave to exceed the page
limitation.” LR PL P 12(d).
“When a party does make objections, but these objections are so general or
conclusory that they fail to direct the district court to any specific error by the magistrate
judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730
(S.D. W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When
only a general objection is made to a portion of a magistrate judge’s reportrecommendation, the Court subjects that portion of the report-recommendation to only a
clear error review.”

Williams v. New York State Div. of Parole, No. 9:10-CV-1533

(GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). “Similarly, when an
objection merely reiterates the same arguments made by the objecting party in its original
papers submitted to the magistrate judge, the Court subjects that portion of the reportrecommendation challenged by those arguments to only a clear error review.” Taylor v.
Astrue, 32 F. Supp. 3d 253, 260-61 (N.D.N.Y. 2012).
Courts have also held that when a party’s objection lacks adequate specificity, the
party waives that objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766
(2d Cir. 2002) (finding that even though a party filed objections to the magistrate judge’s
R&R, they were not specific enough to preserve the claim for review). Bare statements
“devoid of any reference to specific findings or recommendations . . . and unsupported by
legal authority, [are] not sufficient.” Mario 313 F.3d at 766. Pursuant to the Federal Rules
of Civil Procedure and this Court’s Local Rules, “referring the court to previously filed
papers or arguments does not constitute an adequate objection.” Id.; See also Fed. R.

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Civ. P. 72(b); LR PL P 12. Finally, the Fourth Circuit has long held, “[a]bsent objection,
we do not believe that any explanation need be given for adopting [an R&R].” Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no explanation
whatsoever is required of the district court when adopting an R&R).
III. DISCUSSION
Upon review of all the filings in this matter, the Court finds that the Petitioner has
presented no new material facts or arguments in his objections to the magistrate judge’s
R&R. The objections fail to address the magistrate judge’s conclusion that this Court
lacks jurisdiction 28 U.S.C. § 2244(3)(A) because Petitioner filed a second or successive
§ 2254 petition and failed to seek or obtain authorization from the Court of Appeals to
pursue this action.
Moreover, the Petitioner fails to address the magistrate judge’s alternate
conclusion that if this Court had jurisdiction, the claims fail as a matter of law. Nothing
presented in the Petitioner’s objections addresses these conclusions, much less presents
new or material facts or legal arguments. Therefore, the Court finds that de novo review
is not required because the Petitioner’s objections make no new legal arguments and the
factual presentation was properly considered by the magistrate judge in his R&R. See
Taylor, 32 F. Supp. 3d 253, 260-61.
IV. CONCLUSION
Accordingly, finding that Magistrate Judge Trumble’s R&R carefully considers the
record and applies the appropriate legal analysis, it is the opinion of this Court that
Magistrate Judge Trumble=s Report and Recommendation [ECF No. 16] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated therein. Thus, the

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Petitioner’s Petition is DISMISSED WITHOUT PREJUDICE. ECF No. 1. This case is
ORDERED STRICKEN from the Court’s active docket.
The Clerk of Court is further DIRECTED to transmit a copy of this Order to the pro
se Petitioner by certified mail, return receipt requested, at his last known address as
reflected upon the docket sheet.
DATED: March 31, 2021

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