THOMAS S. KLEEH, District Judge.
Pending before the Court is United States Magistrate Judge Michael J. Aloi's Report and Recommendation ("R&R") concerning the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by
In 2012, a jury in the Circuit Court of Berkeley County, West Virginia, convicted Petitioner of two counts of first-degree murder
Petitioner appealed his conviction to the Supreme Court of Appeals of West Virginia ("SCAWV"), which affirmed the trial court's conviction. ECF No. 52-15. Meanwhile, he petitioned the Circuit Court of Berkeley County for a writ of habeas corpus, which it summarily dismissed after directing Respondent to answer certain claims. ECF Nos. 13-3, 13-4. Petitioner appealed the summary dismissal to the SCAWV, which denied him relief via Memorandum Decision. ECF No. 13-2.
Petitioner filed a
Ralph Terry, the Respondent and Acting Warden at Mount Olive Correctional Complex ("Respondent"), filed a Motion for Summary Judgment on May 3, 2018, arguing that the petition should be dismissed because Petitioner failed to state a claim upon which relief can be granted. ECF No. 81. Petitioner filed a Response. ECF No. 90. Judge Aloi then entered his R&R, recommending that the Court grant Respondent's Motion for Summary Judgment and deny and dismiss the petition. ECF No. 96.
On March 6, 2019, Petitioner filed objections to the R&R. ECF No. 98. He makes the following objections:
When reviewing a magistrate judge's R&R, the Court must review
Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."
Habeas relief is available under 28 U.S.C. § 2254 to state prisoners in "custody in violation of the Constitution or laws or treaties of the United States."
This Court may grant relief under the "contrary to" clause "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts."
A petitioner must exhaust his remedies in the courts of the state before seeking § 2254 review.
Here, Petitioner states that he has exhausted his state remedies because all grounds in the petition have been presented to West Virginia's highest court. ECF No. 13 at 15. Petitioner has alleged seven general types of claims: (A) Prosecutorial Misconduct; (B) Judicial Bias/Misconduct; (C) Insufficient Evidence; (D) Ineffective Assistance of Trial Counsel; (E) Ineffective Assistance of Appellate Counsel; (F) Denial of Meaningful Appellate and Post-Conviction Collateral Review; and (G) Cumulative Error. The Court has sorted the counts based on their "type" and will analyze them under each type's governing law. The Court will examine in turn each ground alleged in the petition that remains for consideration.
In determining whether a prosecutor's actions during trial warrant habeas relief, "[t]he relevant question is whether the prosecutor's comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"
The Supreme Court of the United States has indicated that "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether prosecutor's conduct affected the fairness of the trial."
Specifically, Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor knowingly used false testimony from Joseph Medina ("Medina") to obtain convictions. ECF No. 13 at 10.
A defendant's right to due process is violated when "the prosecution's case included perjured testimony and `the prosecution knew, or should have known, of the perjury.'"
Here, the SCAWV found that Petitioner "failed to show that the prosecutor presented false testimony," noting that there was "no conclusive evidence that Medina's trial testimony was false." ECF No. 52-15 at 27. The court acknowledged that there were inconsistencies between Medina's prior statements to police and Medina's testimony at trial but found that the inconsistencies did not amount to a false statement at trial.
This Court agrees with the SCAWV. Petitioner has not cited any factual information to support a finding that Medina lied while testifying at trial. As Judge Aloi stated, Petitioner "has not proven that there was any perjury, let alone that `the prosecution knew, or should have known of the perjury[.]'" ECF No. 96 at 23 (citing
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor impeached Petitioner's credibility by attacking his post-
Specifically, Petitioner alleges that his constitutional rights were violated when the prosecutor, during cross examination, repeatedly questioned him regarding his post-
The Supreme Court of the United States held in
If a defendant testifies at trial and tells an exculpatory version of events, the State may not use his post-
Here, at trial, Petitioner testified to an exculpatory version of events. The following includes the relevant portions of the trial transcript during cross examination, some of which was included by Petitioner in his briefing:
ECF No. 52-31 at 33-37. The next portion of the transcript, which Petitioner cites in part, is as follows:
Finally, the prosecutor made the following remarks to the jury during closing arguments:
ECF No. 52-32 at 42-43; 54; 55; 64-65; 107; 108.
These excerpts from the record indicate that the trial judge told the prosecutor that she could not comment on Petitioner's post-arrest silence to law enforcement. The prosecutor did not ask Petitioner about his silence to law enforcement upon arrest. When she asked him if he had told his story to anyone in law enforcement, defense counsel objected, prompting the original sidebar. She then asked Petitioner if he told "anyone" his version of events, and she asked him, specifically, if he told Angela's father his version of events.
The SCAWV recognized that some of the state's questions "potentially could have been construed as referring to the petitioner's post-arrest silence" but "also could simply have been a general initial question for the prosecutor's line of questioning regarding petitioner's pre-arrest discussion with Mr. Devonshire." ECF No. 52-15 at 24. The SCAWV wrote that "[t]he question was ambiguous and isolated, and the prosecutor did not pursue this question improperly into the realm of post-arrest silence."
This Court agrees with the SCAWV's determinations. Comments or lack of comments made to Angela's father do not warrant
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor, during cross examination and closing arguments, repeatedly asserted that Petitioner's due process mandated entitlement to discovery evidence had aided him in deceiving the jury. The comments relevant to this claim are included above in Ground 4(1). Petitioner has cited no law indicating that a prosecutor may not comment on his right to review discovery. Regardless, the comments were isolated and did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. On this issue, the SCAWV's application of law and determination of facts were reasonable. Therefore, the Court finds that this claim is without merit.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor, during cross examination and closing arguments, "implicitly and illicitly utilized the privileges of the attorney-client relationship to the detriment of the Petitioner." His petition does not indicate what specific behavior he is referencing.
Petitioner, in his objections, clarifies that he "is asserting that the State gave to the Petitioner absolutely no evidence at all — they gave it to his attorneys[.]" ECF No. 98 at 7. When Petitioner reviewed the State's evidence, he did so during a "privileged consultation with his attorneys."
The prosecutor referenced Petitioner's ability to review the evidence for two years in order to come up with a story to avoid conviction. The relevant portions of the trial transcript are listed above in the Ground 4(1) section. Petitioner has cited no law supporting his argument that a prosecutor may not comment, due to attorney-client privilege, on a petitioner's right to review evidence. Even so, the Court finds that these comments were isolated and did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. The SCAWV's application of law and determination of facts were reasonable.
Therefore, this claim is without merit.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor, during closing arguments, repeatedly accused Petitioner of lying under oath (i.e. committing perjury).
Rule 611(b) of the Federal Rules of Evidence states that a party witness may be cross-examined on "matters affecting the witness's credibility." Further, "[i]t is a well-settled rule that a defendant who voluntarily offers himself as a witness and testifies in his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity and credibility."
When Petitioner chose to testify at trial, he brought his credibility into issue. The jury was also instructed that the comments and arguments of counsel are not evidence and that the jurors were to decide the case based solely on the evidence. ECF No. 52-28 at 180-81; ECF 52-32 at 24. The prosecutor may comment during closing argument on Petitioner's credibility. Her remarks were based on the evidence presented.
Petitioner has not demonstrated that the prosecutor's comments were so fundamentally unfair as to deny him due process. He has not articulated any unreasonable application of federal law during the state proceedings, and he has not shown that the court's adjudication resulted in a decision based on an unreasonable determination of the facts. Therefore, Petitioner has not established that he is entitled to relief on this claim.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the State introduced evidence of a violent fictional novel previously authored by Petitioner. Petitioner argues that this evidence "had no legitimate bearing on any issue at trial" and was so unduly prejudicial that it rendered the trial unfair.
Here, before trial, the parties stipulated that the State would not use Petitioner's novel in its case-in-chief but that the State could refer to the novel in any rebuttal it might present. ECF No. 52-15 at 12-13. During cross examination of Petitioner, the prosecutor questioned him regarding his novel. Defense counsel objected, and in a side bar, the prosecutor explained:
ECF No. 52-31 at 19-21. The trial judge added the following, while the parties were still having a side bar:
In analyzing this line of questioning, the SCAWV found that the prosecutor "characterized the petitioner as a writer of crime fiction who had two years to parse every piece of the State's evidence in his case and to fabricate a story consistent with the State's evidence." ECF No. 52-15 at 13. Therefore, the SCAWV found that the admission of this evidence was proper on cross-examination under Rule 611(b)(1) of the State Virginia Rules of Evidence and
As discussed above, Petitioner put his credibility in issue when he chose to testify at his trial. The State used the novel to attack Petitioner's credibility. As such, Petitioner has not established that the trial court denied him a fundamentally fair trial by allowing this line of questioning. He has not demonstrated that the trial court's or SCAWV's rulings were either erroneous or "so extreme as to result in a denial of a constitutionally fair proceeding." The SCAWV's factual determinations and application of the law as to Ground 5 are reasonable, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor made improper remarks in front of the jury.
Specifically, Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor attacked, in front of the jury, Petitioner's constitutional rights to silence, to counsel, and to evidence. This is the same argument proffered by Petitioner in Ground 4, and the Court finds it is without merit for the same reasons as listed above.
In Ground 7(2), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor used her position and status to undermine Petitioner's credibility and testimony and to bolster the testimony of the State's witness. Petitioner does not cite any specific instances in the record.
As discussed in Ground 4(4), Petitioner put his credibility in issue when he chose to testify and subject himself to cross-examination. The prosecutor is constitutionally permitted to make comments about a witness's credibility. Petitioner has not shown that the SCAWV's decision was unreasonable as to its application of federal law or determination of facts, and, therefore, he is not entitled to relief. This ground is without merit for the same reasons discussed in Ground 4(4).
In Ground 7(3), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor knowingly elicited and utilized false testimony to secure a conviction. This is the same argument proffered by Petitioner in Ground 3, and the Court finds it is without merit for the same reasons as listed above.
In Ground 7(4), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor used portions of Petitioner's fictional novel as evidence, unduly prejudicing Petitioner. This is the same argument proffered by Petitioner in Ground 5, and the Court finds it is without merit for the same reasons as listed above.
In Ground 7(5), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor misused portions of Petitioner's fictional novel as evidence, unduly prejudicing Petitioner. This is the same argument proffered by Petitioner in Ground 5, and the Court finds it is without merit for the same reasons as listed above.
In Ground 7(6), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor misquoted witnesses' testimony, including Petitioner's testimony, in order to prejudice him.
The petition does not mention specific examples. Petitioner's Response, however, provides some clarification. He cites the following portions of trial, during which he claims that the prosecutor misquoted witnesses' testimony in order to prejudice him:
ECF No. 90 at 23-26.
The SCAWV found that "[a]ny improper comments were isolated, were not deliberately placed before the jury to divert its attention to extraneous matters, and did not have a tendency to mislead the jury or prejudice the petitioner." ECF No. 52-15 at 30. This Court agrees. Petitioner has not shown that the SCAWV's decision is an unreasonable application of federal law or an unreasonable determination of fact with regard to any of these prosecutorial statements, and, therefore, he is not entitled to relief.
In Ground 7(7), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor argued facts not in evidence. The petition does not cite any facts in support. A review of Petitioner's Response indicates that he was concerned about the following comments by the prosecutor:
ECF No. 90 at 26-27.
The SCAWV found that these comments did not arise to prosecutorial misconduct and that "[a]ny improper comments were isolated, were not deliberately placed before the jury to divert its attention to extraneous matters, and did not have a tendency to mislead the jury or prejudice the petitioner." ECF No. 52-15 at 30. As Judge Aloi noted, "it is apparent that these three statements were not misstatements, or at worst, were unintentional, minor misstatements, that were not material to the prosecution, or were not prejudicial to Petitioner." ECF No. 96 at 47. This Court agrees. Petitioner has not shown that the SCAWV's decision was an unreasonable application of law or an unreasonable determination of fact, and he is not entitled to relief.
In Ground 7(8), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor inundated the jury with improper remarks during closing arguments. This is the same argument proffered by Petitioner in Grounds 4 and 5, and the Court finds it is without merit for the same reasons as listed above. In Ground 7(9), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor engaged in other gross misconduct that unduly prejudiced Petitioner. This is the same argument proffered by Petitioner in Grounds 4 and 5, and the Court finds it is without merit for the same reasons as listed above.
"Due process secures a criminal defendant's right to an impartial trial judge."
In Ground 6, Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial court refused to give the jury an instruction proffered by Petitioner that described Petitioner's theory of the case.
Generally, jury instructions are matters of state law and procedure and do not invoke federal constitutional guarantees.
Petitioner's requested instruction was based upon Syllabus Point 2 of
A review of the trial transcript provides the following:
ECF No. 52-32 at 4-5.
The SCAWV found "that the circuit court's refusal to give the instruction from
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial court engaged in bias and misconduct and made prejudicial remarks before the jury.
The Fourth Circuit has written that "`[a] judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune' and do not establish bias or partiality."
Specifically, in Ground 8(1), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge, prior to trial, made an "extremely prejudicial and biased remark" in open court regarding Petitioner's guilt and culpability. The statement Petitioner references was made during a pretrial hearing. ECF No. 52-14 at 72-73. During a pretrial hearing, the trial judge, according to Petitioner, said that Petitioner's defense "doesn't hold water."
In Ground 8(2), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge, prior to trial, manipulated the State's witness to strengthen the State's case. Petitioner seems to be referencing events somewhat explained in his Amended Petition.
The SCAWV found that the claims of judicial misconduct, to the extent that they are not a rehashing of assignments of error previously presented, are "frivolous assertions of bias" that are "deem[ed] wholly unnecessary to address." ECF No. 52-15 at 30. The Court finds that these allegations are at best speculative and vague ("it has been reported . . ."), and the state court's application of law and determination of facts as to this claim were reasonable. Petitioner is not entitled to relief.
In Ground 8(3), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge refused to strike two biased jurors for cause. This claim is a reiteration of the claim in Ground 2, which has been previously found to be procedurally barred. Therefore, the Court will not address Ground 8(3).
In Ground 8(4), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge allowed the prosecutor to present unduly prejudicial evidence in the form of Petitioner's novel. This is the same argument proffered by Petitioner in Ground 5, and the Court finds it is without merit for the same reasons as listed above.
In Ground 8(5), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge allowed the prosecutor to attack Petitioner's post-
In Ground 8(6), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when, during cross examination, the trial judge accused Petitioner of being argumentative, inconsistent, and evasive in his answers. There are no factual allegations in the Petition as to this claim, but Petitioner's Response clarifies. He is referencing the following exchange:
ECF No. 52-31 at 112-13.
The SCAWV found that these claims, to the extent that they are not a rehashing of assignments of error previously presented, are "frivolous assertions of bias" that are "deem[ed] wholly unnecessary to address." ECF No. 52-15 at 30. The Court agrees with Judge Aloi's findings on this point: the trial judge's statements to Petitioner during trial were "ordinary efforts at courtroom administration" taking place when Petitioner was failing to answer the question asked.
ECF No. 52-28 at 181. The trial judge's conduct did not render the trial unfair, and the state courts' application of the law and determination of facts were reasonable. This claim, therefore, is without merit.
In Ground 8(7), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge did not intervene to limit the prosecutor's improprieties during closing arguments. As discussed above, Petitioner's claims of prosecutorial misconduct are without merit and are dismissed, so the Court will not find that the trial judge was duty-bound to intervene during closing arguments. Therefore, this sub-ground is without merit.
In Ground 8(8), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge attempted to guide and advise the prosecutor throughout the case. In the petition, Petitioner cites no facts supporting this conclusory statement. He provides some guidance in his Response, citing a transcript from a motion hearing held on July 9, 2019:
ECF No. 52-27 at 9-16. Petitioner also cites another exchange during the trial:
ECF No. 52-31 at 18-19. Petitioner contends that the trial judge, during this exchange, "essentially nudged the prosecutor into misrepresenting this evidence during the course of trial." ECF No. 90 at 42.
As to the first exchange, as Judge Aloi noted, it took place during a discussion of evidentiary issues during a motions hearing, not during trial. The court was expressing its surprise that the State did not want the evidence of the 911 call submitted, was discussing the pros and cons of the evidence for each side, and, as Judge Aloi noted, "was not colluding in some fashion with the state" in any way. ECF No. 96 at 57. As to the second exchange, this Court has already discussed the admissibility of the novel and will not reiterate its reasoning here. For those reasons, the Court finds that the state courts' determinations on these evidentiary issues were not unreasonable as to factual determinations or application of the law, and Petitioner is not entitled to relief on this claim.
In Ground 8(9), Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the trial judge engaged in other subtle conduct to the detriment of Petitioner. Petitioner fails to identify facts supporting this allegation. Such conclusive statements are not sufficient to overcome summary judgment. Therefore, this claim is without merit.
When reviewing a claim of insufficiency of evidence, the district court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when he was convicted by evidence insufficient to establish his guilt beyond a reasonable doubt for every element of the charged crime. He argues that there was no evidence of premeditation and deliberation that could establish beyond a reasonable doubt that he committed first degree murder.
Under West Virginia law, "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design."
Here, after viewing the evidence in the light most favorable to the prosecution, the Court finds that a rational trier of fact could have found beyond a reasonable doubt that premeditation and deliberation existed. First, Elizabeth Devonshire testified that at 3:00 a.m. on June 6, 2010, she observed that the Angela's curtains were tightly closed. ECF No. 52-29 at 75. A reasonable jury could infer that Petitioner closed the curtains so no one would see him commit murder, which could indicate premeditation and deliberation. Further, Petitioner testified that on June 3, 2010, he anonymously reported to the police a threat made by Medina against the victims. ECF No. 52-30 at 246-57. A reasonable jury could find that he did this to frame Medina for crimes Petitioner was planning to commit, which could indicate premeditation and deliberation. As to Andre's death, a reasonable jury could find that Petitioner killed Andre with premeditation and deliberation, while sparing the infant, because a three-year-old would be able to identify Petitioner to police. The SCAWV cited a number of these arguments in finding that the evidence was sufficient to support the jury's finding that Petitioner committed premeditated and deliberated murder. Therefore, the Court finds that the SCAWV's application of law and determination of facts were reasonable, there was sufficient evidence to support Petitioner's convictions, and Petitioner is not entitled to relief on this claim.
In examining a claim of ineffective assistance of counsel, the court conducts a two-part analysis. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."
Second, the defendant must show that the deficient performance prejudiced the defendant.
In a § 2254 proceeding, this Court does not examine whether the
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by the ineffective assistance of his state-appointed trial counsel.
Specifically, Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his state-appointed trial counsel when his counsel failed to thoroughly and independently investigate the crime at issue.
The petition does not specify how counsel allegedly failed to thoroughly and independently investigate the crime. Petitioner's Response, however, identifies three alleged deficiencies in his counsel's performance: (1) failure to search the woods for "blood evidence" to corroborate Petitioner's claim that he had fled from the two murderers and had hidden there; (2) failure to immediately locate and interview Medina; and (3) failure to timely investigate Petitioner's claim that he had made calls to 911 and other law enforcement agencies several days before the crimes occurred. ECF No. 52-16 at 144-45.
After Petitioner briefed this at the trial court level, the trial court judge found that Petitioner's first claim failed to show
ECF No. 52-21 at 10. Further, counsel was not appointed for at least two weeks after the crimes were committed, so the probability of finding blood spatter was very unlikely.
Next, the trial judge noted that Petitioner's counsel vigorously cross-examined Medina at trial and that Petitioner did not show that contacting Medina immediately would have resulted in a different outcome at trial. Last, the trial judge wrote that Petitioner did not establish that he was prejudiced when his counsel failed to investigate Petitioner's anonymous calls to 911 days before the crimes were committed. Counsel did in fact investigate it and used the calls as evidence at trial.
This Court agrees with the trial court's reasoning and the SCAWV's dismissal. Petitioner's counsel's alleged failure to investigate these issues did not to the level of ineffective assistance. Petitioner has not established that but for these alleged errors, the result of his trial would have been different. Accordingly, the state court's ruling was not an unreasonable determination of facts or an unreasonable application of federal law, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his state-appointed trial counsel when counsel failed to file a pretrial motion to suppress the introduction of Petitioner's violent fictional novel and failed to request a limiting instruction informing the jury that Petitioner's fictional novel was for impeachment only and not to be considered as evidence of a material or substantive fact.
As to the motion to suppress, Petitioner's counsel at trial attempted to minimize the use of the novel. Both parties stipulated that the novel could not be used in the prosecution's opening or case-in-chief but that the novel could be used to rebut evidence. At trial, the prosecutor cross-examined Petitioner, using the novel to attack his credibility. Counsel objected, but the trial court determined that the stipulation did not prevent the prosecution from using the novel during cross-examination and that it was relevant to Petitioner's credibility. ECF No. 52-15 at 13. The trial court, in its habeas decision, even wrote that "[i]t is clear that trial counsel tried to preclude the use of the book at trial, and that had trial counsel done so with a written motion in imine, the trial court's ruling would not have been different." ECF No. 52-21 at 11.
Petitioner has not established that but for these alleged errors, the result of the trial would have been different. The state courts' application of law and determination of the facts were reasonable, and Petitioner is not entitled to relief on this claim. As to the limiting instruction, again, Petitioner has failed to show that but for the alleged failure, the outcome of the trial would have been different. The state courts' application of the law and determination of facts were reasonable, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his state-appointed trial counsel when his counsel failed to object to and move for a mistrial based on the prosecutor's improper and unconstitutional questions about Petitioner's post-
These issues were addressed in Grounds 4 and 5 above. The Court has determined that Petitioner's claims of prosecutorial misconduct and judicial misconduct are without merit and are dismissed. Trial counsel did object to the State's questioning of his pre-arrest silence, preserving the issue for appeal. ECF No. 52-21 at 12. The SCAWV found that the line of questioning was not error. Therefore, by not moving for a mistrial and — at times — not objecting (though, notably, counsel did object), Petitioner's counsel's performance was not deficient. The SCAWV's application of law and determination of facts were reasonable, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his state-appointed trial counsel when his counsel failed to object to and move for a mistrial based on the prosecutor's other improper and unconstitutional remarks made during closing arguments. As the Court explained above, there was no prosecutorial misconduct regarding these remarks (Ground 4) and there was no judicial misconduct in not preventing them (Ground 8(5)). Therefore, there is no proper claim of ineffective assistance of counsel for failing to either object or move for a mistrial. This claim has no merit, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his state-appointed trial counsel when his counsel failed to object to and move for a mistrial for the trial court's "many instances of blatant bias and misconduct." This Court has already addressed Petitioner's claims of judicial misconduct. The trial court did not engage in misconduct. Therefore, this claim has no merit, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his state-appointed trial counsel when his counsel failed to object "to a myriad of prejudicial circumstances throughout the entirety of the trial." The petition does not specify which prejudicial circumstances he is referencing. The other pleadings prove to be insufficient explanations as well. Conclusory allegations are not enough to overcome summary judgment. The Court finds the state courts' application of law and determination of facts were reasonable, and Petitioner is not entitled to relief on this claim.
Petitioner "is afforded the right to effective assistance of counsel as to his first appeal as of right."
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his appellate counsel when his counsel failed to present certain grounds on appeal that were stronger than those presented and failed to present constitutional questions or cite to United States Supreme Court authority. Counsel on appeal challenged the sufficiency of the evidence, the use of Petitioner's novel, the alleged comments on the post-arrest silence, the refusal to give the jury instruction, the "false and perjured" testimony, and prosecutorial and judicial misconduct.
Petitioner has failed to demonstrate that the claims should have been raised on appeal or were more meritorious than the claims that were presented. It was reasonable for his appellate counsel to focus on the grounds it raised. Petitioner has not listed any claims that his appellate counsel could have or should have raised. The SCAWV's application of law and determination of facts were reasonable. Therefore, Grounds 12(1) and 12(2) are without merit, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by ineffective assistance of his appellate counsel when his counsel "failed to pinpoint with accurate, appropriate, and specific citations to the trial record the post-
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the SCAWV failed to provide Petitioner meaningful appellate and post-conviction collateral review. The Supreme Court of the United States has held that a criminal defendant has a liberty interest in its "substantial and legitimate expectation" of certain procedural protections, and an "arbitrary deprivation" of those protections may constitute a constitutional violation.
ECF No. 82 at 21. Petitioner contends in his Response that "the State courts refused to abide by their own Constitution and fully consider and decide all of the Petitioner's claims." ECF No. 90 at 50. The Circuit Court of Berkeley County, West Virginia, and the Supreme Court of Appeals of West Virginia both addressed all of Petitioner's claims and explained their reasoning, and, now, this Court has as well. Ground 13 is without merit, and Petitioner is not entitled to relief.
Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated by the cumulative effect of multiple trial errors. "The cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error," and "[t]he purpose of a cumulative-error analysis is to address that possibility."
Here, as discussed above, the Court has found no individual constitutional errors with respect to any of Petitioner's claims. Therefore, a cumulative-error analysis is not appropriate.
Petitioner also contends that the prosecutor erred in failing to provide notice of its intent to use 404(b) evidence, that the trial court failed to change the venue of the trial due to massive publicity, and that the state witness informed the jury that Petitioner was staying at the local regional jail. With regard to the 404(b) claim, Petitioner has provided no facts indicating why he is entitled to relief, and although a
Petitioner has failed to overcome the presumption that the state court was correct in its decision. See 28 U.S.C. § 2254(e)(1). For the reasons discussed above, the Court
It is so
The Court directs the Clerk to enter a separate judgment order and to transmit copies of it and this Order to the
