“[T]o preserve for appeal . . ., a party must object . . . with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.”
How later courts described this case
- “[T]o preserve for appeal . . ., a party must object . . . with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.”
- holding that a de novo review was required because a party “specifically challenged the magistrate’s proposed factual findings”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CHARLES TERRY,
Petitioner,
v. CIVIL ACTION NO. 2:24-cv-00735
SUPERINTENDENT JONATHAN FRAME,
Respondent.
MEMORANDUM OPINION AND ORDER
This action was referred to the Honorable Omar J. Aboulhosn for submission of proposed
findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636. On December
2, 2025, Judge Aboulhosn submitted his Proposed Findings & Recommendation (“PF&R”), [ECF
No. 19], recommending that the court GRANT the Respondent’s Motion for Summary Judgment
and REMOVE the matter from the court’s docket. The Petitioner filed Objections to the PF&R
on December 16, 2025, [ECF No. 22], and the Respondent responded to those objections on
January 6, 2026, [ECF No. 25].
In a 41-page PF&R, Magistrate Judge Aboulhosn thoroughly detailed the procedural
history of this case. [ECF No. 19]. Petitioner Charles Terry was convicted on thirty-nine counts of
various sex crimes under West Virginia state law in December 2015. Id. at 2. Petitioner’s counsel
at the time filed an appeal in the Supreme Court of Appeals of West Virginia (“SCAWV”) asserting
many errors including ineffective assistance of counsel. Id. at 2–4. The state supreme court
affirmed his convictions. Id. at 4; State v. Charles T., 2018 WL 5794870, at *9 (W. Va. Nov. 5,
2018).
In November 2019, Petitioner filed his first state habeas petition asserting numerous errors
including ineffective assistance of counsel for (1) failure to challenge the state’s expert under the
Daubert standard1 and (2) failure to present expert testimony during the Petitioner’s case-in-chief.
[ECF No. 19, 4–5]. The Circuit Court of Fayette County held a hearing on the petition, hearing
from both the Petitioner and his trial counsel at the relevant time. The court denied Petitioner’s
petition, Petitioner appealed, and the SCAWV affirmed the circuit court’s decision. Id. at 6.
Petitioner filed a second habeas petition in December 2022 asserting similar errors. Id. at
6. The circuit court denied his petition, Petitioner appealed, and the SCAWV denied his appeal.
Id. at 7.
Petitioner’s federal 2254 habeas petition is now before the court. He alleges that the failure
of his trial counsel to attempt to exclude testimony of the State’s expert witness under Daubert (or
present testimony of his own expert) amounted to ineffective assistance of counsel. Id. at 8; [ECF
No. 11, at 5] (asserting only one ground of error in his petition). Soon after, Respondent moved
for summary judgment with nearly 700 pages of exhibits. [ECF Nos. 13, 14].
After a careful analysis the Magistrate Judge found that the state courts’ habeas
determinations were not “contrary to, or an unreasonable application of, clearly established federal
law; or based on an unreasonable determination of facts.” [ECF No. 19, at 34]. First, he found that
the state courts’ application of Strickland was not unreasonable because the State’s expert was
“well qualified to present the expert testimony and such testimony was relevant, reliable, and
admissible.” Id. at 36. Additionally, the testimony Petitioner sought to exclude in his petition
accounted for a small portion of the expert’s testimony, which was more generally a “medical
opinion regarding all of her clinical observations of the victim’s vaginal trauma.” Id. Therefore,
1Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
the Petitioner could not show that he was prejudiced by his trial counsel’s failure to attempt to
exclude the expert’s testimony. Id. Second, the Magistrate Judge found that the state courts’
application of Strickland was not unreasonable regarding Petitioner’s trial counsel’s failure to hire
his own witness. Id. at 39–40. Petitioner failed to identify an expert or specific testimony that
would have been more beneficial to his defense, and Petitioner’s trial counsel testified that he
rebutted the State’s expert through cross-examination. Id. at 38. The state court agreed, calling the
cross-examination “effective” and finding that a defense expert could not have significantly
benefited the defense. Id. Therefore, the Petitioner could not show that the failure of his trial
counsel to retain an expert amounted to ineffective assistance of counsel. Id.
In response to the PF&R, Petitioner makes three general and broad objections:
1. The Petitioner objects to the determination declining to find “that the State
courts unreasonably applied Strickland to the facts of this case in finding that
trial counsel did not act unreasonably by failing to seek the exclusion of Dr.
Phillips as an expert witness.” (ECF 19, at 35).
2. The Petitioner objects to the determination declining to find “that the State
court’s application of the Strickland standard was unreasonable concerning trial
counsel’s failure to seek the exclusion of Dr. Phillips’ testimony.” (ECF 19, at
37).
3. The Petitioner objects to the determination declining to find “the State court’s
application of the Strickland standard was unreasonable concerning to trial
counsel’s alleged failure to retain an expert witness.” (ECF 19, at 40).
[ECF No. 22, at 1].
Petitioner does not offer specific factual or legal disagreements with the PF&R. Nor does
Petitioner assert any specific error within the Magistrate Judge’s analysis, he only quotes the
PF&R. Lastly, the Petitioner—with a record of almost 1,000 pages—fails to direct the district court
to any evidence or fact to review. In sum, the Petitioner’s three broad objections cover the major
issues of his petition such that his three objections are really a single objection to the entire PF&R.
This is the kind of objection to a PF&R that a district court need not review de novo. But see
Opriano v. Johnson, 687 F.2d 44, 47–48 (4th Cir. 1982) (holding that a de novo review was
required because a party “specifically challenged the magistrate’s proposed factual findings”).
Instead, 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) “constitutes a waiver of the right to de novo review.”
McPherson v. Astrue, 605 F. Supp. 2d 744, 749 (S.D. W. Va. 2009); see United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for appeal . . ., a party must object . . . 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 waiver. See Merritt v. Cochran-Youell, 269 Fed. Appx.
268, 269 (4th Cir. 2008) (unpublished); Howard’s Yellow Cabs, Inc. v. United States, 987 F. Supp.
469, 474 (W.D.N.C. 1997).
Petitioner’s objections are general and conclusory. None direct the district court to a source
of error in the Magistrate Judge’s factual findings or legal conclusions. Therefore, the Petitioner
has waived de novo review, and the objections are OVERRULED.
The court adopts and incorporates herein the PF&R and orders judgment consistent
therewith. The court GRANTS the Respondent’s Motion for Summary Judgment, [ECF No. 19],
and REMOVES the matter from the court’s docket.
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 Memorandum Opinion and Order to
counsel of record and any unrepresented party.
ENTER: January 16, 2026
ee STATES DISTRICT JUDGE