United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE United States District Judge.
matter is before the court on the Order and Memorandum and
Recommendation ("Order and M&R") of United
States Magistrate Judge Robert T. Numbers, II, pursuant to 28
U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) [D.E. 28].
The court ADOPTS the Order and M&R.
August 7, 2015, Jerry William McNeill, Jr.
("petitioner" or "McNeill") a state
inmate proceeding pro se, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 [D.E. 1]. He alleged
four claims. First, he challenged his conviction as a
habitual felon. Pet. ¶ 12 (Ground One). Second, he
claimed that the Superior Court erred by failing to
retroactively apply state sentencing provisions, enacted in
2009 and 2011, which would have reduced his sentence.
See Id. (Ground Two). Third, he claimed
that his sentence was grossly disproportionate in violation
of the Eighth Amendment. Id. (Ground Three). Fourth,
he argued that he received ineffective assistance of counsel
at his resentencing proceeding. Id. (Ground Four).
Subsequently, McNeill filed a motion to appoint counsel [D.E.
11]. The matter was referred to Judge Numbers pursuant to 28
U.S.C. § 636(b)(1)(C) for entry of a memorandum and
March 25, 2016, Judge Numbers entered a Memorandum and Order
allowing the action to proceed [D.E, 8]. On May 9, 2016,
Respondent Frank L. Perry filed an answer [D.E.. 12], a
motion for summary judgment [D.E. 13], and a memorandum in
support of his motion for summary judgment [D.E. 16]. On July
20 and 21, 2016, McNeill filed responses in opposition to the
motion for summary judgment [D.E. 23, 24].
February 3, 2017, Judge Numbers entered his Order and M&R
denying McNeill's motion for counsel and recommending
that the court dismiss McNeill's habeas petition. Sag
Order and M&R [D.E. 28]. On February 16, 2017, McNeill
filed objections to the Order and M&R [D.E. 30].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendations. Diamond, 416 F.3d at 315 (quotation
omitted). The court does not perform a de novo review where a
party makes only "general and conclusory objections that
do not direct the court to a specific error in the
magistrate's proposed findings and recommendations."
Orpiano v. Johnson. 687 F.2d 44, 47 (4th Cir. 1982).
Upon careful review of the record, "the court may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1); see Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983).
court has reviewed the Order and M&R, the record, and
McNeill's objections. As for those portions of the Order
and M&R to which McNeill made no objection, the court is
satisfied that there is no clear error on the face of the
first objection, McNeill argues that the habitual felon
indictment in his case was defective because the
indictment's file number was the same as the number of
the principal felony, he never admitted to the habitual felon
status, he was not informed of the prior felonies used to
support the habitual felon status, and the prosecutor had no
jurisdiction to indict him as a habitual felon. See Obj.
[D.E. 30-1] ¶ 1. However, McNeill fails to advance any
argument or authority to support his objection and merely
restates the argument set out in his habeas petition.
See Pet. [D.E. 1] ¶ 12 (Ground One). Merely
reiterating the same arguments made in the pleading submitted
to the magistrate judge does not warrant de novo review. See
Veney v. Astrue, 539 F.Supp.2d 841, 846 (W.D.Va.
2008). That notwithstanding, Judge Numbers correctly
concluded that this claim should be dismissed. See Order and
M&R [D.E. 28] 8-10. The issue of the sufficiency of a
state indictment is a matter of state law. A state
court's determination that one of its courts had
jurisdiction over a purely state law criminal charge is not a
matter cognizable in federal habeas review. See Wright v.
Angelone, 151 F.3d 151, 157 (4th Cir. 1998). Further, a
state court's decision on a question of state law is
binding in federal court. See Estelle v. McGuire,
502 U.S. 62. 67-68 (1991): Thomas v. Davis. 192
F.3d445, 449 n.l (4th Cir. 1999). Thus, this objection is
the transcript of plea in McNeill's case makes clear that
McNeill was aware of what he pled to and that he intended to
plead guilty to being a habitual felon. The trial court
inquired, and McNeill acknowledged under oath, in open court,
that his attorney had explained the habitual felon charge to
him, he understood the nature and the elements of the charge,
he was satisfied with his lawyer's services, he
understood he was pleading guilty to the habitual felon
charge, and he had in fact attained the status of a habitual
felon. See Tr. of Plea, D.E. 15-3. McNeill signed the plea,
along with the prosecutor and his attorney. See id
McNeill's attorney stated that he had "fully
explained to the defendant the nature and elements of the
charge(s) to which the defendant is pleading."
Id. The trial court found, among other things, that
there was a factual basis for the plea, McNeill was satisfied
with his attorney, McNeill made an informed choice to plead,
and the plea was made freely, voluntarily and
understandingly. Id. Judge Numbers correctly
concluded that McNeill's claim that his plea to being a
habitual felon was uninformed is contradicted by the record.
See Blackledge v. Allison, 431 U.S. 63, 74 (1977)
("[a] [defendant's sworn representations made at a
plea hearing 'carry a strong presumption of verity5 and
'constitute a formidable barrier against any subsequent
collateral proceedings.'"). This objection is