Opposition Brief — James Timothy Samples, Petitioner v. David Ballard, Warden

No. 17-6459

In the Supreme Court of the United States

JAMES TIMOTHY SAMPLES,

Petitioner,

v.

DAVID BALLARD, Warden,

Mount Olive Correctional Complex,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Appeals

Of West Virginia

BRIEF IN OPPOSITION

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

Vaughn.T.Sizemore@wvago.gov

(304) 558-2021

VAUGHN T. SIZEMORE

Senior Deputy Attorney General

Counsel of Record

ZACHARY A. VIGLIANCO

Assistant Attorney General

QUESTION PRESENTED

Does the Constitution require a United States District Court to engage in de

novo review of claims advanced by a federal habeas petitioner when those claims

are raised for the first time during objections to the proposed findings and

recommendation of a United States Magistrate Judge?

i

TABLE OF CONTENTS

Page

Question Presented ………………………………………………………………………… i

Table of Contents…………………………………………………………………………….. ii

Table of Authorities……………..………………………………………………………… iii-v

Opinions Below ……………………………………………….………………………………. 1

Statement …………………………………………………………………………….............. 1

Reasons for Denying the Petition ………………………………………………………….. 9

I.

II.

The Lower Courts Are United That District Courts Have No Duty

To Consider New Claims Raised For The First Time In Objections

To The Recommendation Of A Magistrate Judge .…………………….. 11

This Case Is The Wrong Vehicle To Resolve The Scope Of District

Courts’ Discretion To Consider New Arguments Raised In

Objections To A Magistrate’s Recommendation.……………………….. 18

Conclusion …………………………………………………………………………………... 26

ii

TABLE OF AUTHORITY

Cases

Aikens v. Shalala,

956 F. Supp. 14 (D.D.C. 1997) ........................................................................... 15, 19

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013) .................................................................................................... 26

Berkemer v. McCarty,

468 U.S. 420 (1984) .................................................................................................. 20

Borden v. Sec’y of Health & Human Servs.,

836 F.2d 4 (1st Cir. 1987)................................................................................... 13, 18

Burdine v. Johnson,

262 F.3d 336 (5th Cir. 2001) .................................................................................... 11

Collins v. Colvin,

640 F. App'x 698 (10th Cir. 2016) ............................................................................ 21

Cupit v. Whitley,

28 F.3d 532 (5th Cir. 1994) ...................................................................................... 14

Dailey v. Berryhill,

2017 WL 2691421 (S.D.W. Va. June 22, 2017) ....................................................... 24

Duncan v. Walker,

533 U.S. 167 (2001) .................................................................................................. 24

Freeman v. County of Bexar,

142 F.3d 848 (5th Cir. 1998) .................................................................................... 21

Gray v. Netherland,

518 U.S. 152 (1996) .................................................................................................. 12

Greenhow v. Sec’y of Health & Human Servs.,

863 F.2d 633 (9th Cir. 1988) .................................................................................... 14

Gwin v. Martel,

2017 WL 517759 (C.D. Cal. Feb. 6, 2017) ............................................................... 15

Hylla v. Transportation Commc’ns Int’l Union,

536 F.3d 911 (8th Cir. 2008) .................................................................................... 21

JumpSport, Inc. v. Jumpking, Inc.,

213 F.R.D. 329 (N.D. Cal.2003) ............................................................................... 25

Marshall v. Chater,

75 F.3d 1421 (10th Cir. 1996) ............................................................................ 13, 21

Martinez v. Ryan,

566 U.S. 1 (2012) ................................................................................................ 11, 23

Mayle v. Felix,

545 U.S. 644 (2005) ............................................................................................ 18, 24

Mount Hope Church v. Bash Back!,

705 F.3d 418 (9th Cir. 2012) .................................................................................... 25

Murr v. United States,

200 F.3d 895 (6th Cir. 2000) .............................................................................. 13, 21

iii

TABLE OF AUTHORITY (cont.)

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) .................................................................................................. 12

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co.,

840 F.2d 985 (1st Cir. 1988) ......................................................................... 14, 21, 25

Ramos v. Kyler,

2004 WL 828363 (E.D. Pa. Apr. 12, 2004) ............................................................... 15

Roberts v. Apfel,

222 F.3d 466 (8th Cir. 2000) .................................................................................... 13

Rose v. Lundy,

455 U.S. 509 (1982) .................................................................................................. 23

Samples v. Ballard,

No. 2:13-CV-11638, 2014 WL 1338562 (S.D.W. Va. Jan. 21, 2014) ......................... 2

Samples v. Ballard,

No. 2:14-CV-15413, 2016 WL 1271508 (S.D.W. Va. Mar. 31, 2016)………………... 3

Sanchez v. Keller,

2008 WL 461593 (S.D.N.Y. Feb. 15, 2008) .............................................................. 15

St. John v. Moore.,

135 F.3d 770, 1998 WL 71516 (4th Cir. 1998) ........................................................ 14

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................................. 25

Thomas v. Arn,

474 U.S. 140 (1985) .................................................................................................... 1

Trevino v. Thaler,

569 U.S. 413 (2013) .................................................................................................. 11

United States v. Foster,

674 F.3d 391 (4th Cir. 2012) .................................................................................... 14

United States v. Garfinkle,

261 F.3d 1030 (10th Cir.2001) ................................................................................. 13

United States v. George,

971 F.2d 1113 (4th Cir. 1992) .......................................................................... passim

United States v. Hayes,

482 F.3d 749 (4th Cir. 2007) .................................................................................... 14

United States v. Howell,

231 F.3d 615 (9th Cir. 2000) .................................................................................... 21

United States v. Humphreys,

194 F.3d 1306 (4th Cir. 1999) .................................................................................... 7

United States v. Raddatz,

447 U.S. 667 (1980) .................................................................................................... 1

United States v. Shami,

754 F.2d 670 (6th Cir. 1985) .................................................................................... 17

United States v. Young,

470 U.S. 1 (1985) ...................................................................................................... 22

iv

TABLE OF AUTHORITY (cont.)

Williams v. Bd. of Prison Terms,

255 F. App'x 276 (9th Cir. 2007) .............................................................................. 16

Williams v. High Desert State Prison,

2008 WL 5099733 (E.D. Cal. Dec. 1, 2008) ............................................................. 15

Williams v. McNeil,

557 F.3d 1287 (11th Cir. 2009) .......................................................................... 14, 21

Wood v. Allen,

558 U.S. 290 (2010) .................................................................................................. 20

Yee v. City of Escondido,

503 U.S. 519 (1992) .................................................................................................. 20

Statutes

28 U.S.C. § 636 ............................................................................................................... 2

28 U.S.C. § 2244 ..................................................................................................... 23, 24

28 U.S.C. § 2254 ............................................................................................... 11, 16, 23

v

OPINIONS BELOW

The United States Magistrate Judge’s Proposed Findings and Recommendation

(“PF&R”) is unpublished. It is available on CM/ECF, Samples v. Ballard, Case No.

2:14-cv-15413 (ECF 25), and has been reproduced in Petitioner’s Appendix.

The Memorandum Opinion and Order of the United States District Court for

the Southern District of West Virginia, which adopted the Magistrate Judge’s

PF&R, is also unpublished. It has been informally reported at 2016 WL 1271508

and a copy has been reproduced in Petitioner’s Appendix.

The opinion of the United States Court of Appeals for the Fourth Circuit,

affirming the District Court’s decision, is published in the Federal Reporter at 860

F.3d. 266. It has also been reproduced in Petitioner’s Appendix.

STATEMENT

This case involves a straightforward application of the federal statutory

scheme governing post-conviction relief. It is well-established that United States

Magistrate Judges may make an initial recommendation on any matter concerning

postconviction relief referred to them by a district court so long as the district court

retains “the ultimate authority to issue an appropriate order.” United States v.

Raddatz, 447 U.S. 667, 682 (1980); see also Thomas v. Arn, 474 U.S. 140, 153-54

(1985). As the Federal Magistrate’s Act explains, “a [district] judge may designate a

magistrate judge to hear and determine any pretrial matter pending before the

court except [certain specifically enumerated matters] . . . [and] may also designate

a magistrate judge to conduct hearings, including evidentiary hearings, and to

submit to [the district court] proposed findings of fact and recommendations for

disposition, by the judge of the [district] court, of any motion excepted . . . [filed in

connection with an] application[] for posttrial relief made by [an] individual[]

convicted of [a] criminal offense[] . . . .” 28 U.S.C. § 636(b)(1). Once the magistrate

judge has made a recommendation, the 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.” Id. Petitioner would have this Court

go further, by adopting a rule that would require district courts to consider new

legal claims—not simply arguments supporting properly raised bases for relief—

that are raised for the first time in objections to a magistrate’s recommendation. No

court has adopted this atextual approach, and for good reason. This Court should

deny the Petition.

1.

On Monday, August 15, 1995, the lifeless body of 23-year old Joanna

Sigmon was discovered in her Charleston, West Virginia apartment.

See Prior

District Court Record,1 ECF 9-4 at 14, ECF 9-12 at 80; see also generally Record

Below, ECF 10-3, 10-4, 10-5, 10-6, 10-7, 10-8, 10-9.

1 Petitioner’s repeated efforts to

Circumstantial evidence

obtain post-conviction relief have resulted in an

extensive record spanning a number of related state and federal filings. As the

decision below does not outline the factual basis for the convictions Petitioner

challenges here, this statement of the case is drawn largely from the record of

Petitioner’s direct appeal in state court, which was also included in the record for

Petitioner’s first federal habeas filing (“Prior District Court Record”). See Samples

v. Ballard, No. 2:13-CV-11638, 2014 WL 1338562 (S.D.W. Va. Jan. 21, 2014), report

and recommendation adopted in part, rejected in part, 2014 WL 1342312 (S.D.W.

Va. Mar. 31, 2014). This brief also cites to the transcript of Petitioner’s state court

criminal trial, which is also part of the record below (“Record Below”). See Samples

v. Ballard, No. 2:14-CV-15413, 2016 WL 1271508 (S.D.W. Va. Mar. 31, 2016).

2

indicated that Joanna had been killed sometime in the early morning hours of

Sunday, August 14, 1995, when she returned home after spending Saturday night

out with friends in downtown Charleston. See Prior District Court Record, ECF 9-4

at 11-14, ECF 9-12 at 84; see also Record Below, ECF 10-4 at 90-93, 98-100, 143-46,

155, ECF 10-3 at 6-9. She was apparently robbed (the contents of her purse were

found “sprawled all over [her] bed”), and her attacker had both stabbed and

strangled her.

Prior District Court Record, ECF 9-4 at 11-14, ECF 9-12 at 84

(“Joanna had two ligatures marks on her neck . . . [and] two large, gaping wounds to

the right side of her neck where she had been stabbed”); Record Below, ECF 10-5 at

186-88, 191, ECF 10-7 at 178-81, ECF 10-3 at 28-31.

At the time of the murder, Petitioner was Joanna’s neighbor—they lived in

Apartment C and Apartment A, respectively, of the same building. Prior District

Court Record, ECF 9-4 at 10, ECF 9-12 at 81; see also Record Below, ECF 10-3 at

23, ECF 10-6 at 8-9. Evidence introduced at trial indicated that Petitioner returned

to the apartment building around the time of the murder after a night of “fun,

alcohol, and crack cocaine.” Prior District Court Record, ECF 9-4 at 10, ECF 9-12 at

81; see also Record Below, ECF 10-6 at 75-76, 120-121, 216-17, 243. Several pieces

of circumstantial evidence linked Petitioner to Joanna’s robbery and murder: a

cigarette butt containing his DNA was found inside her apartment, Petitioner’s

girlfriend pawned a necklace later that belonged to the victim the same day the

body was discovered, and a knife consistent with the one used in the crime was

recovered from the home of a relative Petitioner had visited two days after the

3

murder. Prior District Court Record, ECF 9-12 at 83-86; see also Record Below,

ECF 10-6 at 9-16, 27-32, 42-44, 53-62, 221-22. Moreover, several witnesses—

including Petitioner’s girlfriend—testified that Petitioner had confessed to the

murder. Prior District Court Record, ECF 9-12 at 85-86 (explaining that Petitioner

spoke with his girlfriend after his initial arrest and “indicated he was aware that

[she] knew he had murdered Joanna,” and that later, while Petitioner was

incarcerated on a parole violation, he “admitted to another inmate . . . that he ‘killed

[the victim] by [stabbing] her in the neck’ and ‘[strangling] her with an electrical

cord”).

The Kanawha County Grand Jury indicted Petitioner on June 4, 1996. Prior

District Court Record, ECF 9-12 at 86. The indictment contained four counts: one

count each of first-degree murder and aggravated robbery, and two counts of

burglary. Id. Petitioner was tried in January 1998 and the jury convicted him of

first-degree felony-murder. See id. at 86-87; see also Pet. App. at 62-63. He was

sentenced to life in prison without the possibility of parole.

Id.

Petitioner

subsequently sought direct appellate review of his conviction in the Supreme Court

of Appeals of West Virginia (“Supreme Court of Appeals”), but his petition was

refused. Prior District Record, ECF 9-12 at 87; see also Pet. App. at 63.

2.

On October 15, 1999, Petitioner filed a pro se habeas petition in the

Circuit Court of Kanawha County (“circuit court”). Pet. App. at 64. On March 3,

2001, that petition was summarily dismissed. Id. at 64-65. Petitioner appealed

4

that denial to the Supreme Court of Appeals, which ordered the circuit court to

appoint counsel and conduct an evidentiary hearing. Id. at 67.

With the assistance of counsel, Petitioner filed an amended habeas petition.

Id. at 68. Petitioner also had an opportunity to present evidence and further develop

his claims at an evidentiary hearing. Id. at 69. On October 31, 2011, the circuit

court denied the amended petition on the merits. Id. Petitioner appealed that

denial to the Supreme Court of Appeals, which affirmed the circuit court’s decision

on April 12, 2013. Id. at 70.

On June 13, 2013, Petitioner filed a new state habeas petition in circuit court.

Id. That petition was summarily denied on Jul 19, 2013. Id. at 71. Petitioner

appealed again, and the Supreme Court of Appeals again affirmed the circuit court.

Id.

3.

Petitioner initially sought federal habeas relief in 2013, raising claims

substantially similar to those alleged here. That petition was dismissed without

prejudice because he had not yet exhausted his available state court remedies. Pet.

App at 71. On April 28, 2014, Petitioner filed the underlying Petition in the United

States District Court for the Southern District of West Virginia.

Id.

In that

petition, Petitioner raised seven distinct grounds, including a four-part claim of

ineffective assistance of counsel:

1)

Petitioner’s right to a fair and impartial jury and fair

sentencing process were abridged because defense counsel failed to voir

dire prospective jurors about their willingness to make a mercy

recommendation;

2)

Petitioner received ineffective assistance of trial counsel because his

attorneys:

5

A. Did not ask prospective jurors about their willingness to

consider or make a recommendation of mercy;

B. Informed the jury that Petitioner was a convicted felon

and was attempting to evade his parole officer at the time the

murder took place;

C. Failed to propose a limiting instruction regarding Petitioner’s prior

conviction and his parole status; and

D. Failed to ensure that two defense witnesses, who were

incarcerated at the time of trial, would testify in street clothes so

as not engender prejudice in the mind of the jury;

3)

The underlying indictment was deficient and therefore void;

4)

The prosecution failed to prove all required elements of the crime of

robbery or burglary;

5)

The state court abridged Petitioner’s Fifth and Fourteenth Amendment

rights to Due Process when it denied his Motion for Acquittal;

6)

Petitioner’s right to a fair and impartial trial was abridged when two of

his witnesses testified in distinctive prison garb and restraints; and

7)

Cumulative error.

Id. at 71-72.

The district court, pursuant to a standing order, referred the case to a United

States Magistrate Judge. Id. at 73. On February 6, 2015, the magistrate judge

issued his Proposed Findings and Recommendation (“PF&R”) in which he

determined that Petitioner’s claims were meritless and therefore recommended that

the district court grant summary judgment for Respondent and dismiss the

Petition. Id. at 127.

On March 10, 2015, Petitioner filed objections to the PF&R. Id. 4. In those

objections, Petitioner presented additional allegations of ineffective assistance of

trial counsel predicated on “six errors of omission,” and what the court below

characterized as a “freestanding” claim of ineffective assistance against his

postconviction counsel. Id.; see also id. at 54. The six “errors of omission” were

6

“mention[ed], but . . . not specifically describe[d]” in Petitioner’s objections to the

PF&R, id. at 54, and developed further in Petitioner’s briefing below. Those six new

“errors” flowed from trial counsels’ purported failure to:

1) Request a bifurcated trial;

2) Secure a jury free of all disqualifications;

3) Seek sequestration of the jury;

4) Obtain testing, recommended by a forensic expert, to facilitate exclusion

of certain prosecution exhibits;

5) Submit the curriculum vitae of defense experts;

6) Locate or interview a specifically named alternate perpetrator of the

crime.

Id. at 4 n.3; see also id. at 54 n. 19.

The District Court did not address these new claims, explaining that it

“declin[ed] to review habeas claims that should have been raised in [Petitioner’s]

§ 2254 Petition” itself. Id. at 55 (citing United States v. Humphreys, 194 F.3d 1306

(4th Cir. 1999) (unpublished table disposition)). The court noted that the Fourth

Circuit had not yet “definitively resolved th[e] question” whether a district court is

required to review claims raised for the first time in objections to a Magistrate

Judge’s PF&R in a habeas case.

The court did, however, consider the Fourth

Circuit’s decision in United States v. George, 971 F.2d 1113 (4th Cir. 1992), in which

the court held that “as part of its obligation to determine de novo any issue to which

proper objection is made, a district court is required to consider all arguments

directed to that issue” when reviewing a magistrate judge’s PF&R, “regardless of

whether they were raised before the magistrate.” Id. at 56.

7

Nevertheless, the district court ultimately determined that George did not

control where “a habeas petitioner uses his objections to plead new claims that

should have been raised in the habeas petition.” Id. at 56. The court reasoned that

a contrary holding—permitting Petitioner to raise a novel claim via objection to a

PF&R—would “show disregard for [the Antiterrorism and Effective Death Penalty

Act of 1996]’s timing requirements, defeat the purpose of the Magistrate’s Act, and

unfairly prejudice the Respondent,” and further that it would be “imprudent . . . to

allow a habeas petitioner to elude AEDPA’s filing deadlines by changing course

after receiving an unfavorable ruling from the magistrate judge.” Id. at 57, 58. Yet,

recognizing this decision as “debatable,” the district court granted a certificate of

appealability on whether George governed the case’s outcome. Id. at 58; see also id.

at 2.

4.

Petitioner appealed to the Fourth Circuit. The court below addressed

“whether George applies, how it applies, and whether it was appropriately applied”

to Petitioner’s objections to the PF&R. Id. at 8. The court reemphasized its position

in George that the Federal Magistrates Act imposes a duty on district courts to

“‘determine de novo any issue to which proper objection is made,” id. at 9-10

(quoting George, 971 F.2d at 1118), and held that this duty extends to the habeas

context no less than any other where a magistrate makes a recommendation to the

district court, id. at 11.

The court also explained that “George envisions a

hierarchical scheme, wherein a legal case is divided into issues, and issues are

further subdivided into arguments.” Id. at 10 (emphasis in original).

8

Consistent

with this hierarchy, a district court must “consider all arguments directed to [an

objected-to] issue, regardless of whether they were raised before the magistrate.”

Id. at 9-10 (quoting George, 971 F.2d at 1118).

In the habeas context, the court below reasoned that the habeas petition is

the equivalent of George’s “legal case,” the grounds for relief articulated in the

petition are the “issues,” and the legal positions “related to the grounds for relief”

are the “arguments.” Id. at 14. Applying this framework to the new assertions in

Petitioner’s objections to the PF&R, it concluded that they constituted “new grounds

for relief”—and thus “that makes them new ‘issues’ and not new ‘arguments related

to issues contained within [Petitioner’s] 2014 [federal] Petition.” Id. at 16. The

court accordingly held that the district court had no duty to review—de novo or

otherwise—these newly-asserted claims. Id. at 17.

Petitioner filed his Petition for a Writ of Certiorari on October 23, 2017. On

November 14, 2017, the Court granted Respondent’s motion for an extension of the

deadline to file this response to January 8, 2018.

REASONS FOR DENYING THE PETITION

Petitioner asks this Court to grant review to resolve two separate questions

regarding district courts’ responsibility to conduct de novo review of issues referred

to a magistrate judge: Whether district courts must consider new claims raised for

the first time in objections to a magistrate’s recommendation, and whether district

courts must consider new arguments in such objections. The Court should decline

Petitioner’s invitation on both fronts.

9

First, there is no division or confusion in the lower courts regarding the

appropriate response to new claims. To the contrary, every court to consider the

issue has held—like the court below—that district courts’ duty to conduct de novo

review of properly objected-to issues in a magistrate’s recommendation does not

extend to entirely new issues that a litigant failed to raise before the magistrate.

The decision below simply applied this principle to the specific context of federal

habeas cases. Petitioner identifies no division in the lower courts on this question,

and there is no reason to disturb courts’ uniform application of this well-worn rule.

Second, the division of authority Petitioner does identify relates to the

independent question whether district courts must consider new arguments that

were not presented to the magistrate judge. Yet this admitted division is shallow:

The vast majority of circuits to address the question hold that courts may—but need

not—entertain new arguments raised at the objections stage; only the court below

differs by requiring district courts to consider such arguments. And significantly,

Petitioner has already benefited from the approach most favorable to his case. The

mandatory rule the court below adopted benefits Petitioner; his true objection is to

the Fourth Circuit’s application of that rule (in classifying his new, purported

“errors” as new claims), not to the rule itself. As a result, this Court’s review would

not afford Petitioner any meaningful relief, making this case a poor vehicle for

review.

10

I.

The Lower Courts Are United That District Courts Have No

Duty To Consider New Claims Raised For The First Time In

Objections To The Recommendation Of A Magistrate Judge.

It is undisputed that the “six errors of omission,” advanced by Petitioner for

the first time in this case during his objections to the PF&R, see Pet. App. at 15,

represent purported constitutional violations which, if substantiated, could entitle

him to habeas relief.2 See 28 U.S.C § 2254 (providing that federal courts shall

entertain “an application for a writ of habeas corpus . . . only on the ground that

[the incarcerated applicant] is in custody in violation of the Constitution or laws . . .

of the United States.”); see also Rule 2(c)(1), Rules Governing Section 2254 Cases in

the United States District Courts (federal petition must “specify all the grounds for

relief available to the petitioner”); cf. Burdine v. Johnson, 262 F.3d 336 (5th Cir.

2001) (affirming lower court’s determination that trial counsel who slept repeatedly

during defendant’s capital murder trial rendered ineffective assistance). To be sure,

Petitioner previously raised “at least some” of these claims in his 2013 federal

habeas petition, though he did not “plead facts to excuse [his] procedural default.”

Pet. App. at 55; see also Samples v. Ballard, WL 1342312, at *3. That procedural

default arose from the fact that after initially pursuing these claims in state court

in his pro se 1999 state habeas petition, he did not seek appellate review of the

2 Petitioner’s “freestanding claim” of ineffective assistance of state post-conviction

counsel is not a new ground for relief but rather an argument offered in support of

the newly raised grounds represented by the six “errors of omission.” That is,

Petitioner “freestanding claim” is an invocation of the exception to the preclusive

effect of procedural default articulated by this Court in Martinez v. Ryan, 566 U.S. 1

(2012) and Trevino v. Thaler, 569 U.S. 413 (2013), intended to allow the district

court to address those novel claims. Yet, because the six claims themselves were

not properly raised before the magistrate judge, the district court had no duty to

entertain either those claims or any arguments supporting them.

11

denial of those claims and therefore failed to fully exhaust his available state court

remedies.

Id. at 54, n. 19.

The failure to pursue a then-available state court

remedy precludes a federal court (with limited exception) from addressing such

claims during federal habeas review. See O’Sullivan v. Boerckel, 526 U.S. 838, 842,

853 (1999); Gray v. Netherland, 518 U.S. 152, 161 (1996). Petitioner would thus

have faced an uphill procedural battle to have these claims heard in his second

federal petition no matter how or when he raised them.3

In any event, it is

undisputed that he did not include them in the Petition at issue in this proceeding—

or at any point when litigating before the magistrate judge prior to the filing of

objections to the PR&R.

Thus, the six “errors of omission” discussed in Petitioner’s objections to the

PF&R are properly understood under the George framework to be newly asserted

“grounds for relief”—or “claims”—and not new “arguments” supporting a previously

raised claim. Pet. App. at 12-13. Petitioner contends that this Court’s review is

necessary to resolve a purported division in the lower courts about whether district

courts must consider such claims when raised for the first time in objections to a

PF&R.

But there is no split over this question:

None of the cases Petitioner

invokes—and no court, to our knowledge—requires a district court to consider new

claims not raised in a habeas petition or litigated before the magistrate judge.

3 Were this Court to grant the Petition and reverse the court below, Petitioner’s new

claims would almost certainly be dismissed on remand based on these proceduraldefault concerns. The unrealistic prospect of any relief based on the claims

Petitioner seeks to force the district court to consider further underscores that this

case is a poor vehicle for review.

12

A.

Contrary to Petitioner’s claim, see Pet. at 12, lower courts have

routinely and universally held that district courts are under no obligation to

address claims or grounds for relief presented for the first time in objections to a

magistrate judge’s PF&R. The underlying rationale may differ—some courts apply

the doctrine of waiver to this context, see, e.g., Marshall v. Chater, 75 F.3d 1421,

1426 (10th Cir. 1996), while others rely on the intent and structure of the Federal

Magistrate’s Act, see, e.g., Borden v. Sec’y of Health & Human Servs., 836 F.2d 4, 6

(1st Cir. 1987)—but no court has endorsed the position Petitioner seeks to have

enshrined as federal law. At most, some courts recognize district courts’ discretion

to consider a new claim—such as the court below, which considered whether the

district court abused its discretion by declining to review the new claims, Pet. App.

At 17—but the circuits are united that neither the Magistrate’s Act nor the

Constitution imposes a duty to do so. Indeed, every circuit to have addressed the

issue agrees that a “claimant must present all his claims squarely to the magistrate

judge, that is, the first adversarial forum, to preserve them for review [by the

district court].” Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000).4

4 See

also, e.g., United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir.2001)

(“theories raised for the first time in objections to the magistrate judge’s report are

deemed waived”) (citing Chater, 75 F.3d at 1426); Murr v. United States, 200 F.3d

895, 902 n.1 (6th Cir. 2000) (“Courts have held that while the Magistrate Judge

Act . . . permits de novo review by the district court if timely objections are filed,

absent compelling reasons, it does not allow parties to raise at the district court

stage new arguments or issues that were not presented to the magistrate.”);

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 991

(1st Cir. 1988) (holding “categorically” that the Magistrate’s Act “does not permit a

litigant to present new initiatives to the district judge” because “[a]t most, the party

aggrieved is entitled to a review of the bidding rather than to a fresh deal”);

13

Petitioner presents no contrary authority, and, significantly, the only such

case appears to be an unpublished Fourth Circuit decision that the court below

expressly rejected. See St. John v. Moore. 135 F.3d 770, 1998 WL 71516 (4th Cir.

1998) (unreported table decision). Unpublished decisions in the Fourth Circuit—

especially those, like St. John, issued before 2007—have limited precedential value.

See United States v. Hayes, 482 F.3d 749, 752 n.7 (4th Cir. 2007), rev’d and

remanded on other grounds, 555 U.S. 415 (2009) (dismissing an unpublished

decision as not “controlling precedent” and citing a circuit rule that “citations to

unpublished decisions issued prior to January 1, 2007, are disfavored”); see also

United States v. Foster, 674 F.3d 391, 402 (4th Cir. 2012) (Davis, J., dissenting from

denial of rehearing en banc) (“[B]y rule we deem unpublished opinions

‘nonprecedential’ for several very good reasons.”) (citing 4th Cir. R. 32.1). Further,

the court below specifically distanced itself from St. John’s holding, explained that,

“as an unpublished case, St. John does not bind us.” Pet. App. at 15. There is no

question that the decision below—and not St. John—represents the Fourth Circuit’s

precedential view.

Unsurprisingly, given the uniform approach of the federal courts of appeals, a

host of district courts have reached the same conclusion. In Aikens v. Shalala, for

instance, the court reasoned that “[t]he purpose of the Federal Magistrate's Act is to

relieve courts of unnecessary work”; it “would defeat this purpose if the district

Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009); Cupit v. Whitley, 28 F.3d

532, 535 (5th Cir. 1994); Greenhow v. Sec’y of Health & Human Servs., 863 F.2d

633, 638 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty,

977 F.2d 1347 (9th Cir. 1992).

14

court was required to hear matters anew on issues never presented to the

magistrate” and both “[c]ommon sense and efficient judicial administration dictate

that a party should not be encouraged to make a partial presentation before the

magistrate on a major motion, and then make another attempt entirely when the

district judge reviews objections to an adverse recommendation issued by a

magistrate.”

956 F. Supp. 14, 22–23 (D.D.C. 1997) (collecting cases) (internal

citations and quotation marks omitted); see also Ramos v. Kyler, 2004 WL 828363,

at *4 (E.D. Pa. Apr. 12, 2004) (explaining that although the Third Circuit had not

yet answered the question, “[t]he majority of district courts in our circuit, as well as

other circuit courts, that have addressed this issue have concluded that [issues

raised for the first time in objections to a PF&R] are not properly before the court,

and thus are not to be addressed.”).

District Courts also routinely apply this

principle in the specific context of federal habeas cases. See, e.g., Gwin v. Martel,

2017 WL 517759, at *1 (C.D. Cal. Feb. 6, 2017) (“habeas claims must be raised in

the Petition and before the Magistrate Judge in the first instance, and they are not

properly brought before the Court in objections to a Magistrate Judge's report and

recommendation.”).5

5 See also Williams v. High Desert State Prison, 2008 WL 5099733, at *1 (E.D. Cal.

Dec. 1, 2008) (“a district court has discretion, but is not required, to consider

evidence and claims raised for the first time in the objection to a magistrate judge's

report.”) (internal citation and quotation marks omitted); Sanchez v. Keller, 2008

WL 461593, at *1 (S.D.N.Y. Feb. 15, 2008) (“Sanchez did not raise this claim in his

original [habeas] petition, and so he is precluded from raising it for the first time in

his objections to the Magistrate Judge’s Report.”); see also Williams v. Bd. of Prison

Terms, 255 F. App'x 276, 277 (9th Cir. 2007) (unpublished) (declining to consider

certain habeas claims because the petitioner “did not raise them in his § 2254

15

B.

Petitioner argues that George represented a lone dissent to the rule

that district courts need not consider new claims in objections to a PF&R—and that

the Fourth Circuit wrongly retreated from that position in the decision below. See

Pet. at 12 (arguing that George places upon district courts “an ‘obligation to

determine de novo any issue to which proper objection is made . . . [and] to consider

all arguments direct to that issue, regardless of whether they were raised before the

magistrate.’”) (quoting George, 971 F.2d at 1118). But neither George nor the

decision below adopted such an anomalous rule.

In George, the Fourth Circuit reviewed the legal sufficiency of a search

warrant that led to the discovery of evidence the State sought to use in a federal

racketeering prosecution. 971 F.2d at 1116. George filed motions to suppress; the

motions were referred to a federal magistrate judge who recommended that the

motions be granted. Id. The magistrate judge rejected the government’s argument

that the motions to suppress should be denied under the “good faith” reliance

exception to the exclusionary rule.

Id.

In the government’s objections to that

recommendation, however, the government advanced for the first time two

additional arguments refuting the suppression-of-evidence claim: the defendant’s

lack of any reasonable expectation of privacy, and inevitable discovery. Id. at 111617. The district court declined to address these new arguments on the basis that

they had not been raised before the magistrate judge. Id. at 1117.

petition, and the district court did not address them because Williams raised them

for the first time in his objections to the magistrate judge's report and

recommendation.”).

16

On appeal, the Fourth Circuit agreed with the government’s argument that

the district court’s failure to consider the new arguments “violated the Federal

Magistrate’s Act.”

George, 971 F.2d at 1117.

The court explained that district

courts have an obligation to “determine de novo any issue to which proper objection

is made” and, in service of that obligation, are “required to consider all arguments

directed to that issue, regardless of whether they were raised before the magistrate.”

Id. at 1118 (emphasis added). The court further explained that a “party entitled to

de novo review must be permitted to raise before the [district] court any argument

as to that issue that it could have raised before the magistrate,” provided “that

proper objection to the magistrate’s proposed finding or conclusion has been made,”

and emphasized that this obligation is “‘both statutorily and constitutionally

required.’” Id. (emphasis added) (quoting United States v. Shami, 754 F.2d 670, 672

(6th Cir. 1985)).

George thus imposed on district courts an obligation to consider any

argument supporting an issue or claim advanced during litigation before a

magistrate judge, even if that argument was raised for the first time in an objection

to the magistrate judge’s recommendation. George did not, however, extend that

principle to new issues not properly raised before the magistrate judge.6

The

For most intents and purposes, “not properly before the magistrate judge” is

equivalent to “not contained in the relevant original pleading,” which in a federal

habeas case is the habeas petition. However, because the Federal Rules of Civil

Procedure apply in federal habeas cases to the extent they are not inconsistent with

the Rules Governing Section 2254 Cases in the United States District Courts, Mayle

v. Felix, 545 U.S. 644, 654 (2005), it is at least plausible that a claim not included in

6

17

decision below retained this framework; rather than retreating from a position that

could have salvaged Petitioner’s new claims as Petitioner suggests, the decision

below confirms that George’s framework applies to federal habeas cases. Pet. App.

at 12 (“Having determined that George does apply to habeas cases, we must now

resolve exactly how it is to be applied.”). The decision below simply extended the

Fourth Circuit’s preexisting position—consistent with other federal courts—that

new claims raised in objections to a PF&R need not be considered by the district

court.

Without any judicial division on this issue, there is thus no confusion in the

lower courts for this Court to resolve about whether the Magistrate’s Act requires

district courts to consider new claims a habeas petition raises for the first time in

objections to a magistrate’s recommendation.

Neither is there any reason to

suggest that every court to consider the issue has misconstrued the Magistrate’s Act

or the constitutional due-process guarantee.

To the contrary, there is nothing

suspect about courts’ near-universal agreement that “[p]arties must take before the

magistrate, not only their ‘best shot’ but all of their shots.” Borden, 836 F.2d at 6

(internal citation and quotation marks omitted).

II.

This Case Is The Wrong Vehicle To Resolve The Scope Of

District Courts’ Discretion To Consider New Arguments Raised

In Objections To A Magistrate’s Recommendation.

Petitioner’s central complaint is that the court below did not require the

district court to consider new claims he raised for the first time in objections to the

the petition but otherwise advanced during litigation before the magistrate judge

could be encompassed by this rule.

18

magistrate judge’s PF&R. As explained above, that holding is both correct and

consistent with that of other federal courts nationwide. Petitioner also appears to

argue that this Court should grant certiorari review to resolve a second question:

Whether district courts must consider de novo new arguments not presented to the

magistrate judge. Review is unwarranted on this question, either. Apart from not

being squarely presented in the Petition, there is only a shallow circuit split on this

issue. More importantly, Petitioner has already received the benefit of the most

petitioner-friendly rule. Review by this Court would thus not provide Petitioner any

meaningful relief, making this the wrong case to address this question.

As an initial matter, this question is not squarely presented by this case. In

the Question Presented, Petitioner asks the Court to decide whether “new matters

presented for the first time in objections to the [PF&R] of a magistrate judge” are

entitled to de novo review. Pet. at i (emphasis added). Although somewhat murky,

in the context of this case Petitioner’s reference to “matters” most likely reflects his

hope that this Court will address the issue of new claims. See id. at 18, 19 (arguing

that this case “presents [an] ideal vehicle” to “announce a framework” favorable to

“pro se petitioners . . . who unwittingly omit potentially viable claims from their

original petition . . . [and subsequently] raise them . . . in the guise of objections to a

PF&R”); id. at 18, 20 (relying on procedural doctrine of relation-back as reason to

consider claims raised for the first time at the objection stage). Indeed, this is the

only interpretation that could potentially aid Petitioner.

The Fourth Circuit

already agrees with Petitioner that new arguments must be considered; it ruled

19

against him because the purported errors he raised were not arguments, but

entirely new claims.

This Court ordinarily “do[es] not consider questions outside those presented

in the petition for certiorari.” Yee v. City of Escondido, 503 U.S. 519, 535 (1992);

Berkemer v. McCarty, 468 U.S. 420, 443 n.38 (1984) (“Absent unusual

circumstances, we are chary of considering issues not presented in petitions for

certiorari.”); see also Supreme Court Rule 14.1(a) (“Only the questions set out in the

petition, or fairly included therein, will be considered by the Court.”). And despite

the Petition’s imprecise language, the question of whether district courts must

consider new arguments is not “fairly included” in the Petition. As this Court has

explained, where “the resolution of [a] case does not turn” on a particular question,

“we leave [its resolution] for another day.” Wood v. Allen, 558 U.S. 290, 304-05

(2010). Here, the resolution of the case turns only on whether late-raised claims

must be considered. That question does not warrant review, see supra Part I, and

because the outcome would be the same regardless whether the Fourth Circuit’s

approach to new arguments is correct, review on that question is beyond the

Petition’s scope.

In any event, there is no need for the Court to wade into this separate

question.

A.

The cases Petitioner identifies are focused entirely on the issue of

district courts’ discretion or obligation to consider new arguments raised in

objections to a PF&R (as explained above, courts agree that district courts are never

20

required to consider new claims).

The majority position—followed by the First,

Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits—maintains that district

courts have no duty to address new arguments. See Paterson-Leitch Co., 840 F.2d

at 990-91 (1st Cir.); Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998);

Murr, 200 F.3d at 902 (6th Cir.); Hylla v. Transportation Commc’ns Int’l Union, 536

F.3d 911, 921-22 (8th Cir. 2008); United States v. Howell, 231 F.3d 615, 621 (9th

Cir. 2000); Chater, 75 F.3d at 1426 (10th Cir.); McNeil, 557 F.3d at 1292 (11th Cir.).

Although most of these majority-position circuits hold that district courts may

entertain new arguments as a matter of discretion, the Eighth and Tenth Circuits

take the stricter view that district courts may exercise this discretion in only

relatively narrow circumstances. See, e.g., Collins v. Colvin, 640 F. App’x 698, 700

(10th Cir. 2016) (explaining that the Tenth Circuit adheres to the “firm waiver rule”

except “when the interests of justice so dictate”). The hallmark of these circuits’

approach, however (and as Petitioner explains), is a rejection of the idea “that ‘de

novo’ must include every single argument”; instead, these courts hold “that a

district judge may consider new arguments, but by no means is required to do so.”

Pet. App. at 11-12 n.7.

The Fourth Circuit’s position is an outlier. In both George and the decision

below, the court held that a district court is required to consider new arguments

raised at the objections stage. Perhaps unsurprisingly, no other court has joined

21

the Fourth Circuit in mandating this strict approach.7 See Pet. App. at 11-12 n.7

(“Our approach in George is a minority position, and one that has been criticized

and rejected by our sister circuits.”). The disagreement between the court below

and every other circuit to address the issue constitutes the shallowest of splits. At

least at this time, there is no need for the Court to resolve this disagreement—and

particularly where, far from undercutting litigants’ due-process rights, the decision

below adopted an arguably over-protective approach.

B.

Even if the Court believes that this question is poised for review, this

would still not be the right case because Petitioner has already received the benefit

of the most petitioner-friendly approach. Specifically, the Fourth Circuit held that

district courts are required to consider new arguments raised at the objections

stage, and still determined that Petitioner was not entitled to relief. Thus, the only

way Petitioner could benefit from this Court’s review of the new argument question

is if the Court were to first agree with the Fourth Circuit’s minority position, and

then hold that the court below misapplied that rule by classifying the new “errors”

in his objections as claims, not arguments. However, as this Court has oft stated,

its “institutional role properly is focused on ensuring clarity and uniformity of legal

doctrine, and not on the case-specific process of reviewing the application of law to

the particularized facts of individual disputes . . . .” United States v. Young, 470

U.S. 1, 34 (1985).

7 Respondent takes no position in this brief on the correctness of either the majority

or minority position.

22

Further, the court below was correct to deem Petitioner’s purported errors to

be new claims, not new arguments. Petitioner argued below that “his entire § 2254

petition” should be considered as one “issue” in the case—or in other words, that the

single claim or issue in a habeas case is whether the petitioner is “in custody in

violation of the Constitution or laws . . . of the United States.” Pet. App. at 12.

Petitioner further argued that “each alleged ground for relief” in a habeas petition is

simply an “‘argument’ to demonstrate why his claim”—that is, his petition—“is

correct.”

Id.

The court below, however, found that this conception of the

claim/argument distinction was “belied by habeas corpus jurisprudence, including

statutes and case law.” Id. at 12, 13. Instead, the court concluded that in habeas

cases, “the legal case is the habeas petition[,] the issues or claims are the asserted

grounds for relief[,] and the arguments are whatever position is taken in support of

or against each asserted ground for relief.”

Id.

The court explained that this

understanding is consistent with the statutory provisions governing federal habeas,

which “refer to each basis for [why] the petitioner’s custody may be illegal as a

separate ‘claim.’” Id. at 13 (citing 28 U.S.C. § 2254(d), 28 U.S.C. § 2244(b)(4), 28

U.S.C § 2244(d)(1)(D)). Moreover, this Court “considers each ground for relief an

independent claim.” Id. (citing Rose v. Lundy, 455 U.S. 509, 510 (1982), Martinez v.

Ryan, 566 U.S. 1, 7, 17 (2012)).

To hold otherwise, as the court below explained, would permit “a habeas

petitioner [to] merely [assert] that he is in illegal custody” in his petition and

throughout the litigation before the magistrate judge, as he would be permitted to

23

present “all [his] arguments later.” Id. at 15. Such a result, the court explained,

would represent “an end run around AEDPA, and is not what our case law intends.”

Id. at 15.

AEDPA imposes a one-year statute of limitations on federal habeas

petitions that begins to run from one of four triggering dates.

See 28 U.S.C.

§ 2244(d)(1). Notably, the pendency of a federal habeas petition does not toll this

limitation period. Duncan v. Walker, 533 U.S. 167 (2001). It is thus not uncommon

for AEDPA’s limitation period to expire while a federal petition is being litigated

before a magistrate judge—which means that habeas petitioners may no longer

freely amend a petition to add additional grounds for relief after that point. Mayle

v. Felix, 545 U.S. 644, 657 (2005) (explaining that amendments after the limitations

period runs are limited to issues that “arise from the same core facts as the timely

filed claims”).

Requiring de novo review of new claims raised upon objection to the

magistrate judge’s PF&R would thus allow petitioners who are otherwise barred

from amending their petition to escape the preclusive effect of AEDPA’s limitations

period.

The decision below correctly rejected Petitioner’s request to upend the

settled claim-argument distinction in federal habeas law. Cf. Dailey v. Berryhill,

2017 WL 2691421, at *3 (S.D.W. Va. June 22, 2017) (“The weight of

authority . . . counsel[s] the use of discretion by the district court to consider new

claims . . . not presented to the magistrate. A discretionary standard preserves the

function and purpose of the magistrate system. It avoids reducing the magistrate's

24

role to ‘a mere dress rehearsal,’ and alleviates the constitutional concerns that

animated the George decision.”) (quoting Paterson-Leitch Co., 840 F.2d at 991).

C.

Finally, because the Fourth Circuit evaluated Petitioners’ claims under

the most petitioner-friendly position regarding district courts’ duty to consider new

arguments, he is not the right litigant to press this issue. In short, Petitioner wants

the Court to affirm the holding of the court below on this score, and thus extend the

Fourth Circuit’s minority, mandatory view to benefit other federal habeas

petitioners in circuits where the majority, permissive view governs. Yet because

Petitioner does not have a vested interest in reversal, this case lacks sufficient

adversarial incentive to warrant review.

The backbone of the American legal system is its adversarial nature. “The

lawyer as advocate plays a key part, along with judges and scholars, in assisting the

sound development of the law and of legal rules that further justice.” Mount Hope

Church v. Bash Back!, 705 F.3d 418, 426 (9th Cir. 2012). A properly functioning

adversarial system requires opposing parties with divergent interests; when only

one side is properly represented, the system does not function optimally and the

reliability of the outcomes it produces is significantly diminished. See JumpSport,

Inc. v. Jumpking, Inc., 213 F.R.D. 329, 334 (N.D. Cal. 2003) (“for th[e] [adversarial]

system to function as intended, each party must be motivated to work hard”); cf.

Strickland v. Washington, 466 U.S. 668, 685 (1984) (zealous representation on both

sides of a dispute is “critical to the ability of the adversarial system to function”).

25

From Petitioner’s perspective, the question of district court’s response to new

arguments—as opposed to his primary concern regarding new claims—is nothing

more than an abstract question of law. Just as courts dismiss as moot cases that

are “no longer ‘live’” or where “the parties lack a legally cognizable interest in the

outcome,” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013), there is no need for the

Court to grant review to resolve a shallow split on an issue where even the

Petitioner has no interest in reversal.

CONCLUSION

The Petition for Certiorari should be denied.

Respectfully submitted,

Patrick Morrisey

West Virginia Attorney General

VAUGHN T. SIZEMORE

Senior Deputy Attorney General

Counsel of Record

ZACHARY A. VIGLIANCO

Assistant Attorney General

Office of the West Virginia

Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

vaughn.t.sizemore@wvago.gov

(304) 558-2021

Counsel for Respondent

January 8, 2018

26