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Samples v. Ballard

United States Court of Appeals, Fourth Circuit

June 23, 2017

JAMES TIMOTHY SAMPLES, Petitioner - Appellant,
DAVID BALLARD, Warden, Mount Olive Correctional Facility, Respondent - Appellee.

          Argued: March 23, 2017

         Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:14-cv-15413)


          Wesley Paul Page, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston, West Virginia, for Appellant.

          Thomas M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.

         ON BRIEF:

          Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Shannon Frederick Kiser, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.

          Before TRAXLER, DIAZ, and FLOYD, Circuit Judges.

          FLOYD, Circuit Judge.

         This petition for relief under 28 U.S.C. § 2254 comes before this Court pursuant to a grant of a certificate of appealability by the district court. The district court below rejected arguments from Appellant-Petitioner James Samples based on Samples's failure to raise them before the magistrate judge. Acknowledging, however, that this ruling may run contrary to our holding in United States v. George, 971 F.2d 1113 (4th Cir. 1992), the district court granted the certificate of appealability on the narrow procedural question of whether a habeas petitioner's claims raised for the first time in objections to a magistrate judge's proposed findings and recommendations must be heard by the district judge. We broadly answer this question in the affirmative, but in the instant case find that the district court did not commit reversible error, and therefore affirm.


         This case comes before us on Appellant James Samples's second habeas petition filed pursuant to 28 U.S.C. § 2254, and some background information is necessary to contextualize the petition at issue.

         Samples was convicted in January 1998 for first degree murder, and sentenced to life imprisonment without mercy in Kanawha County, West Virginia. After an unsuccessful habeas petition in state court, Samples filed his first pro se petition under 28 U.S.C. § 2254 in the Southern District of West Virginia on May 17, 2013 (the "2013 Petition").

         On January 21, 2014, Magistrate Judge Dwane L. Tinsley submitted a report of proposed findings and recommendations (PF&R), [1] finding that Samples had not exhausted all of his claims. See Samples v. Ballard (Samples I), No. 2:13-cv-11638, 2014 WL 1338562 (S.D. W.Va. Jan. 21, 2014). Magistrate Judge Tinsley explicitly stated that Samples could argue pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), that his procedural default should be excused due to ineffective assistance of state habeas counsel, and encouraged Samples to make such an argument in a new federal habeas petition. Id. at *10 ("[I]f the petitioner wishes to pursue these claims of ineffective assistance of counsel in the federal court, he will have the opportunity to address the Martinez requirements in his new petition, should he choose to file one.").

         Judge Thomas E. Johnston adopted in part the PF&R on the basis of a failure to exhaust, and dismissed the 2013 Petition as a "mixed petition"[2] without prejudice on March 31, 2014. Samples v. Ballard (Samples II), No. 2:13-cv-11638, 2014 WL 1342312 (S.D. W.Va. Mar. 31, 2014), adopting-in-part Samples I, 2014 WL 1338562. In doing so, Judge Johnston also stated that "Petitioner may be able to state a claim pursuant to Martinez, but such claim must be brought pursuant to a properly filed habeas petition in federal court. . . . [T]o the extent that Petitioner chooses to pursue this argument, he should address the Martinez requirements in his new federal habeas petition . . . ." Id. at *3.

         Following another unsuccessful state court habeas petition, Samples filed a second pro se § 2254 petition (the "2014 Petition"), the petition at issue in this case. On February 6, 2015, Magistrate Judge Tinsley entered a PF&R wherein he evaluated all claims on their merits, found each claim to be without merit, and recommended granting the government's motion for summary judgment. Samples v. Ballard (Samples III), No. 2:14-cv-15413, 2015 U.S. Dist. LEXIS 177412 (S.D. W.Va. Feb. 6, 2015).

         Samples then filed objections to the PF&R on March 10, 2015, still pro se. See generally J.A. 195-217. In those objections, Samples raised brand new contentions related to the effectiveness of trial counsel, and argued that cause existed to excuse his failure to exhaust these issues due to the ineffectiveness of his court-appointed post-conviction counsel in state court. Samples argued that his trial counsel was deficient due to "six acts of omission" and that his post-conviction counsel "declined to present or explicate petitioner's meritorious claims for relief predicated on trial counsel's six acts of omission." J.A. 201-02.[3] He further requested that the district court "find [post- conviction counsel] were ineffective under the standards of [Strickland v. Washington, 466 U.S. 668 (1984)] when they failed to present trial counsel's failure to investigate the facts underlying the six acts of omission . . . . [and] excuse [Samples]'s failure to present this claim to the [Supreme Court of Appeals of West Virginia] due to [post-conviction counsel's] act of omission" pursuant to Martinez. J.A. 201-02. Later, Samples further stated that he was "denied meaningful and effective assistance of post-conviction counsel, when court-appointed counsel omitted [an issue] from the petition for post-conviction relief and the petition for appeal." J.A. 207.

         In a thorough opinion, Judge Johnston overruled the objections, and specifically addressed the objections related to the effectiveness of post-conviction counsel. Samples v. Ballard (Samples IV), No. 2:14-cv-15413, 2016 WL 1271508 (S.D. W.Va. Mar. 31, 2016), adopting Samples III, 2015 U.S. Dist. LEXIS 177412. Judge Johnston noted that even after Magistrate Judge Tinsley had explicitly referenced Martinez in his Samples I opinion, Samples "elected not to raise either the ineffective assistance of habeas counsel claim or the underlying errors of trial counsel in the § 2254 Petition now under review." Samples IV, 2016 WL 1271508 at *18.[4]

         Judge Johnston concluded that Samples was "us[ing] his objections to plead new claims that should have been raised in the habeas petition." Id. at *19. Judge Johnston treated the issue as a matter of waiver; however, he acknowledged that our holding from United States v. George, 971 F.2d 1113 (4th Cir. 1992), might control. The court expressed its belief that George does not apply in the habeas corpus context whatsoever, but also noted that applying George likely would not mandate a different result, because Samples was "seek[ing] to use his objections to assert an entirely novel habeas claim." Id. at *20. The court went on to explain that "[p]ermitting [Samples] to raise his Martinez claim at this point in the case would show disregard for AEDPA[[5]'s timing requirements, defeat the purpose of the Magistrates Act, [[6] and unfairly prejudice the ...

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