Argued: March 23, 2017
from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:14-cv-15413)
Paul Page, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston, West
Virginia, for Appellant.
M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Appellee.
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.
TRAXLER, DIAZ, and FLOYD, Circuit Judges.
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
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.
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").
January 21, 2014, Magistrate Judge Dwane L. Tinsley submitted
a report of proposed findings and recommendations (PF&R),
 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.").
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" 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.
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).
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. 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.
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.
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['s timing
requirements, defeat the purpose of the Magistrates Act,
[ and unfairly prejudice the ...