Opinion

Prophet v. Ballard

Court: District Court, N.D. West Virginia
Filed: Aug 19, 2019
Cited by: 0 cases
Authority: More cited than 32.7%

writing that “[h]aving just determined that none of counsel’s actions could be considered constitutional error . . . it would be odd, to say the least, to conclude that those same actions, when considered collectively deprived [the defendant] of a fair trial”

How later courts described this case

writing that “[h]aving just determined that none of counsel’s actions could be considered constitutional error . . . it would be odd, to say the least, to conclude that those same actions, when considered collectively deprived [the defendant] of a fair trial”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

ANTONIO PROPHET,

Petitioner,

v. Civ. Action No. 1:16-cv-178

(Judge Kleeh)

RALPH TERRY,

Acting Warden,

Respondent.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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 pro se Petitioner Antonio Prophet

(“Petitioner”). Judge Aloi recommends that the Court grant the

Respondent’s Motion for Summary Judgment. For the reasons set forth

below, the Court adopts the R&R, overrules Petitioner’s

objections, grants the Motion for Summary Judgment, and denies and

dismisses the petition.

I. BACKGROUND

In 2012, a jury in the Circuit Court of Berkeley County, West

Virginia, convicted Petitioner of two counts of first-degree

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

murder1 and one count of first-degree arson. ECF No. 13-3 at 4.

The jury did not recommend mercy on either of the murder

convictions. ECF No. 13-2 at 3. The trial court sentenced him to

a determinate term of life without the possibility of parole on

each murder conviction and to a determinate term of twenty (20)

years on the arson conviction, with all sentences to run

consecutively. Id.

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 pro se § 2254 petition in this Court on

September 2, 2016. ECF No. 13. Per Judge Aloi’s March 28, 2018,

Order, the only claims remaining for consideration are Grounds 3–

1 Petitioner was charged with the murder of Angela Devonshire

(“Angela”) and her three-year-old son, Andre White (“Andre”).

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

9, 10(1)–10(13), 10(15)–10(16), 11, 12(1)–12(3), and 13, along

with all subparts to each. See ECF No. 73 at 30.

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:

OBJECTION 1: To certain portions of Judge

Aloi’s factual findings;

OBJECTION 2: To Judge Aloi’s analysis and

legal determinations in Grounds 3, 4 (and all

sub grounds), 5, 7 (and all sub grounds), 8

(and all sub grounds), 9, 10 (and all sub

grounds), 11, 12 (and all sub grounds), and

13;

OBJECTION 3: To Judge Aloi’s “grouping” of

Petitioner’s claims “by type” — specifically

as to his Ground 4 claim — and to how Judge

Aloi failed to state in his R&R how the

prosecutorial remarks challenged by

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Petitioner in Ground 4 are not post-Miranda

silence remarks in violation of Doyle;

OBJECTION 4: To Judge Aloi’s deliberate

distortion of the record (altering the

chronological order of a significant verbal

interaction at trial);

OBJECTION 5: To Judge Aloi’s misapprehension

of Petitioner’s Ground 4(3) claim;

OBJECTION 6: To Judge Aloi’s repeated

assertion that the petition “completely fails

to identify what specific acts the Petitioner

is alleging” in his Ground 7 and Ground 8

claims;

OBJECTION 7: To Judge Aloi’s cherry-picking of

specific acts of misconduct alleged in

Petitioner’s Ground 7 and Ground 8 claims;

OBJECTION 8: To Judge Aloi’s failure to abide

by the law regarding the granting of summary

judgment; and

OBJECTION 9: To Judge Aloi’s current and

possible future participation in the matter.

See ECF No. 98.

II. STANDARD OF REVIEW

When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an objection has been timely

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,

without explanation, any of the magistrate judge’s recommendations

to which the [parties do] not object.” Dellarcirprete v. Gutierrez,

479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing Camby v.

Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold

portions of a recommendation to which no objection has been made

unless they are clearly erroneous. See Diamond v. Colonial Life &

Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Here, due to

the broad scope of Petitioner’s objections, the Court will review

de novo the merits of all remaining grounds. Plaintiff’s Complaint

will be liberally construed because he is proceeding pro se. See

Estelle v. Gamble, 429 U.S. 97 (1976).

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of her case with respect to which she has the burden of

proof.” Id. Summary judgment is proper “[w]here the record taken

as a whole could not lead a rational trier of fact to find for the

non-moving party, there [being] no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288 (1968)).

III. DISCUSSION

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.”2 Habeas relief under § 2254 is only

appropriate when the state court’s adjudication of the claim either

2 Violations of state law or procedure that do not implicate a

specific federal provision do not warrant habeas review. See

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (writing that “it is

not the province of a federal habeas court to reexamine state-

court determinations on state-law questions” and that “[i]n

conducting habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws, or treaties

of the United States”). “It is axiomatic that federal courts may

intervene in the state judicial process only to correct wrongs of

a constitutional dimension.” Wainwright v. Goode, 464 U.S. 78, 83

(1983).

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

(1) “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,”3 or (2)

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.”4 28 U.S.C. § 2254(d)(1)–(2).

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.” Williams v. Taylor,

529 U.S. 362, 412–13 (2000). It may grant relief under the

“unreasonable application” clause “if the state court identifies

the correct governing legal principal from this Court’s decisions

but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 365. Section 2254 also provides that the

“State court shall be presumed to be correct” and that “[t]he

applicant shall have the burden of rebutting the presumption of

3 This is referred to as the “contrary to” clause.

4 This is referred to as the “unreasonable application” clause.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

A petitioner must exhaust his remedies in the courts of the

state before seeking § 2254 review. Id. § 2254(b). To exhaust his

remedies, a federal habeas petitioner must have presented all

federal claims, in federal terms, to the highest state court before

presenting them for federal habeas review. Picard v. Connor, 404

U.S. 270, 275 (1971). Thus, to exhaust a claim in state court, a

petitioner must “expressly raise[] that same federal

constitutional claim in state court that he raises in federal

court.” Diaz v. Weisner, No. 3:06CV81-1-MU, 2006 WL 2224292, at

*11 (W.D.N.C. Aug. 1, 2006).

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

(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.

A. PROSECUTORIAL MISCONDUCT

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.’” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). The Fourth Circuit has

established a two-pronged test to apply in answering this question.

First, the defendant must show that the prosecutor’s remarks were

improper. United States v. Wilson, 135 F.3d 291, 297 (4th Cir.

1998). Second, he must show that the remarks prejudicially affected

the defendant’s substantial rights so as to deprive him of a fair

trial. Id. Several factors influence this determination, and no

one factor is dispositive. The Court considers “(1) the degree to

which the prosecutor’s remarks have a tendency to mislead a jury

and prejudice the accused; (2) whether the remarks were isolated

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

or extensive; (3) absent the remarks, the strength of competent

proof introduced to establish guilt of accused; and (4) whether

comments were deliberately placed before the jury to divert

attention from extraneous matters.” Id. at 299 (citing United

States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)). It also

considers “(5) whether the prosecutor’s remarks were invited by

improper conduct of defense counsel, and (6) whether curative

instructions were given to the jury[.]” Id. (citing United States

v. Young, 470 U.S. 1, 12–13 (1985), and United States v. Harrison,

716 F.2d 1050, 1053 (4th Cir. 1983) (internal citations omitted)).

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.” Young, 470 U.S. at 11. Courts have applied the “invited

response” or “invited reply” rule, which looks at the remarks

within the context of the entire trial to determine whether the

prosecutor’s behavior amounted to prejudicial error. Id. at 11–

12. Turning to the specific claims alleged as prosecutorial

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

misconduct, the Court finds that none of the prosecutor’s alleged

actions so infected the trial with unfairness as to make the

resulting conviction a denial of due process. Petitioner has not

shown that the SCAWV’s dismissal of these claims was an

unreasonable application of the law or an unreasonable

determination of the facts. As discussed below, he is not entitled

to § 2254 relief on his prosecutorial misconduct claims.

Ground 3

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.’” Jones v.

Seifert, 808 F. Supp. 2d 900, 920 (S.D.W. Va. 2011) (citing United

States v. Agurs, 427 U.S. 97, 103 (1976)). To obtain relief based

on such a violation, a petitioner must “demonstrate in his petition

for habeas corpus (1) that a witness made a false statement; (2)

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

that the false statement was material; and (3) that the false

testimony was knowingly and intentionally employed by the

government in order to obtain a conviction.” Leigh v. United

States, No. 3:04CV22, 2005 WL 1334568, at *6 (N.D.W. Va. June 3,

2005) (citing Beasley v. Holland, 649 F. Supp. 561, 566 (S.D.W.

Va. 1986)). Importantly, “[m]ere inconsistencies in testimony by

government witnesses do not establish the government’s knowing use

of false testimony.” United States v. Griley, 814 F.2d 967, 971

(4th Cir. 1987). “The credibility of witnesses is within the sole

province of the jury and is not subject to further judicial

scrutiny.” Beasley, 649 F. Supp. at 566.

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. Id. Petitioner’s

inconsistent statements could mean that he lied previously and was

not lying at trial. Id. The SCAWV noted that “[t]hese are areas

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

which are appropriate for vigorous cross examination,” and

Petitioner’s counsel attacked Medina’s credibility during cross

examination. Id. at 28.

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 Agurs, 427 U.S. at 103). Inconsistent testimony is not

proof of perjury. The comments did not so infect the trial with

unfairness so as to deprive Petitioner of a fair trial. The SCAWV’s

determinations of the facts and application of the law were

reasonable as to Ground 3, and Petitioner is not entitled to relief

under § 2254.

Ground 4

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-Miranda silence.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 4(1)

Specifically, Petitioner alleges that his constitutional

rights were violated when the prosecutor, during cross

examination, repeatedly questioned him regarding his post-Miranda

silence and, during closing arguments, argued that the discrepancy

between his exculpatory story at trial and his silence at time of

arrest gave rise to a legitimate inference that the exculpatory

story was fabricated.

The Supreme Court of the United States held in Miranda v.

Arizona that the prosecution may not use statements stemming from

custodial interrogations of a suspect unless the prosecution

demonstrates that it has used certain procedural safeguards. 384

U.S. 436, 478–79 (1966). To violate Miranda, police must have

obtained a statement — without using safeguards — from a suspect

while he was (1) in custody and (2) being interrogated.

If a defendant testifies at trial and tells an exculpatory

version of events, the State may not use his post-Miranda silence

to impeach him. See Buckner v. Polk, 453 F.3d 195, 208 (4th Cir.

2006). However, there is a difference between post-Miranda silence

and pre-Miranda silence. “Common law traditionally has allowed

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

witnesses to be impeached by their previous failure to state a

fact in circumstances in which that fact naturally would have been

asserted.” Jenkins v. Anderson, 447 U.S. 231, 239 (1980). The

Jenkins Court held that “impeachment by use of prearrest silence

does not violate the Fourteenth Amendment.” Id. at 240. “Each

jurisdiction may formulate its own rules of evidence to determine

when prior silence is so inconsistent with present statements that

impeachment by reference to such silence is probative.” Id. at

239.

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:

Q. And you told us today that you wrote this

work of fiction and you’ve told us this story

that you’ve told us about what happened on the

night of the events and that particular story

was never told to anyone of law enforcement —

MR. MANFORD: Objection.

Q: — or otherwise.

THE COURT: Hold on. There’s an objection.

MR. MANFORD: I may be totally wrong but — can

we have a short sidebar?

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

THE COURT: Sure.

(Conference at the bench)

MR. MANFORD: I could be wrong but isn’t that

commenting on prior statements? She’s trying

to say you didn’t tell anybody about that.

That’s his right until he comes to court.

THE COURT: He can say why he didn’t do it, but

I think she’s entitled to say this is the first

time it has come up, yeah.

MR. MANFORD: So I’m not arguing again, but I

had this in another case in Morgan County

where the prosecutor made a reference to the

Defendant never . . .

THE COURT: Exercising his right to silence to

the police officer. She can’t say you never

told it to the police or anything like that.

Did you ever tell it to anyone. You can’t say

when the police got you[,] you didn’t tell

them that, did you. This is one of those cases

where there could be an exception because he

did make contact after the event to Mr.

Devonshire[,] and she could say why didn’t you

tell him[,] but you can’t — pre-arrest silence

is not the same as post-arrest. It’s

statements to law enforcement that is

exercising your right to silence so you can’t

ask him about anything about law enforcement.

MR. MANFORD: Okay.

THE COURT: But you can say he contacted Mr.

Devonshire after and you didn’t tell him

things like that because that’s not exercising

your right to silence.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

MR. MANFORD: I agree.

THE COURT: Pre-arrest. Pre-arrest silence is

allowed in. Post-arrest silence isn’t.

MR. PREZIOSO: After he was arrested.

MR. PREZIOSO: After he was arrested he did —

[Lieutenant] Harmison did try to interview him

and he asserted his Fifth Amendment right.

THE COURT: All of that stays out. It has to be

pre-arrest.

MR. MANFORD: That was two years ago, right.

Your Honor, just so we have a time, pre-arrest

silence was two years ago.

THE COURT: Unless he made a statement to

someone — I mean, if it’s — if it’s non-law

enforcement he made a statement.

MR. MANFORD: Some snitch in the jail, sure.

THE COURT: Or something like that, but pre-

arrest silence does not — the Fifth Amendment

has not attached —

MR. MANFORD: I agree.

THE COURT: So pre-arrest silence.

MR. MANFORD: You’re at your own peril if you

talk to someone.

THE COURT: Right. Or someone non-law

enforcement outside.

(In open court.)

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

MS. GAMES-NEELY: (resumed)

Q: You did not tell anyone the story that you

told us yesterday prior to taking the stand;

is that correct?

A: That’s incorrect.

MR. MANFORD: Objection. Move to strike based

on the ruling. Unless I totally misunderstood

what the Court —

THE COURT: Well, no. What I said — I’m going

to allow that and leave it at that. I will

overrule the objection based on that.

MS. GAMES-NEELY: (resumed)

Q: Did you, in fact, contact Sidney Devonshire

— and I will put this back up on the overhead.

The jury has already seen this. I’m going to

show you Defendant’s Exhibit Number Nine, sir,

and ask if you recognize that text message.

THE COURT: It’s already in. he’s already

identified it.

A: Yes, ma’am.

Q: That is the text message that you sent to

Sidney Devonshire; is that right?

A: That is correct.

Q: And that text message has what date on it?

A: June 7th, 2010, 7:53 p.m.

A: And on that particular text message, sir,

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

do you describe to him what you’ve described

on that witness stand?

A: No, ma’am.

Q: Did you call Sidney Devonshire and tell

Sidney Devonshire what information you had

regarding the murder of his daughter and his

grandson?

A: No, ma’am.

ECF No. 52-31 at 33–37. The next portion of the transcript, which

Petitioner cites in part, is as follows:

Q: And in this instance, you’ve had two years

to make up this story.

A: I didn’t make up any story, ma’am.

Q: And you’ve had two years to review all the

discovery, all of the pieces, all of the

elements —

A: I didn’t —

Q: — before you came here to testify?

A: I didn’t make up any story, ma’am.

Q: But you’ve had two years to review

absolutely every detail of this case.

A: If you want to look at it like that, yes,

ma’am.

Id. at 157.

Finally, the prosecutor made the following remarks to the

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

jury during closing arguments:

He studied the records. In every criminal case

in West Virginia the State must hand to the

defendant everything we know about this case.

He has had two years to go through each and

every record in this case, each and every

phone record, each and every cell record, each

and every statement. Everything we have he’s

had the opportunity to do it. As any author

will tell you, they study their craft, how

does A fit into B, and how can I best convince

somebody else to do this. Let’s face it, he’s

facing a life sentence. If he doesn’t sell the

book, if he doesn’t sell his story, ladies and

gentlemen, he’s facing a life sentence. He has

a reason to create and craft a story. And

that’s what it is. It is a story.

Don’t be convinced by somebody who takes the

stand and somebody who is slick, can tell a

story, can sit up there and weave his craft in

front of you as if he’s reading his own novel

. . . .

. . .

He never tells a living soul his story until

he takes that stand.

. . .

Remember that? He’s got two years to craft his

story.

. . .

He waits to be on the stand to craft his story.

All of his pieces fit. They fit because you

can look at every piece of evidence and go oh,

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

this must be what happened. This must be what

happened. This may be what happened.

. . .

He’s crafted his story. He sat there slicked

and polished after two years and wrote his

story because if he fails in this story he

goes to prison for the rest of his life so

connect all the little dots.

. . .

It’s a story. He wrote a tale and he sat upon

the witness stand and he told you that tale

after he looked at every sheet of paper that

he went over it mile after mile, and he weaved

and crafted it into a fine story.

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

“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.” Id.

This Court agrees with the SCAWV’s determinations. Comments

or lack of comments made to Angela’s father do not warrant Miranda

warnings and, thus, are proper questioning territory for a

prosecutor to explore. The other questions asked by the prosecutor

(i.e. “Did you mention to anyone . . .”) could be construed as

either pre- or post-arrest, and the state court’s determination

that they are pre-arrest was reasonable. It is also reasonable

that the state court would find that even if the comments were

post-arrest, they were ambiguous and isolated and did not infect

the trial with unfairness as to violate due process. The SCAWV’s

factual determinations and application of the law as to Ground

4(1) are reasonable, and Petitioner is not entitled to relief.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 4(2)

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.

Ground 4(3)

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.” Id. Petitioner

believes that the prosecutor improperly referenced his right to

review the evidence against him and violated his rights to due

process and effective assistance of counsel.

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Therefore, this claim is without merit.

Ground 4(4)

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.”

United States v. Ling, 581 F.2d 1118, 1120 (4th Cir. 1978).

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Ground 5

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:

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

MS. GAMES-NEELY: This book is a compilation of

quite frankly it is the story of a drug war

that is going on with an individual named

Yahoo who is trying to get out of the drug

trade.

THE COURT: Tell me what you want to use it

for.

MS. GAMES-NEELY: What I’m using it for in this

instance, Your Honor, is it talks about in a

particular area involving Mafia portion of the

drug war that there was a fire which an

individual was killed, burned, so there was no

criminal evidence remaining. It talks about

knives being used to slice individuals’

throats, and it also discusses in this

incident that the primary character in this

instance had — an individual who was kind of

a mystery person that was going around who

executed this family specifically his wife and

the daughter in this instance. The young

daughter does survive for a period of time but

the wife was executed as well.

THE COURT: Well, I think the biggest relevance

is here we’re going to credibility. Once you

put your client on the stand it goes to

credibility. The State’s theory is this is all

made up, his whole story is made up. If they

can show he’s previously written a book that

involves drugs and somebody being killed and

things like that I think they’re entitled to

explore into that. It’s not fair to say we had

to put our client on the stand and say this

and not to say the State is entitled to say

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

wait a minute, he has written about this stuff

before, just pigeon holed into it.

MR. PREZIOSO: I would respectfully say are we

impeaching him with fiction?

THE COURT: Not at all. We’re not saying — we’re

not impeaching what he’s saying how is somehow

different than what was said before which is

impeachment. What we’re saying is — what

you’re telling us now isn’t that consistent

with what you said before in some way so it’s

not impeachment whatsoever.

ECF No. 52-31 at 19–21. The trial judge added the following, while

the parties were still having a side bar:

Let me say this. You all got in his statements

— I allowed you to get his statement in to 911

which is a perfect act of fiction because it

says Joseph Medina is going to kill a family

tonight and nobody was killed that night. So

it’s a prior so you have to let that in . . . I

think that it’s very probative and on the

matter and the jury should be allowed to hear

it because they are the ones that have to go

back there and judge credibility of the

witnesses on the testimony.

Id. at 24–25. The prosecutor then questioned Petitioner on facts

of the story that were similar to the facts in his case.

Specifically, the prosecutor questioned him about the idea that a

fire could destroy evidence of crimes, that violence was inherent

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

in drug culture, and that “[p]eople get their throats slit.” Id.

at 26–30.

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

State v. Bradshaw, 457 S.E.2d 456 (W. Va. 1995). The court also

found that the State’s use of the novel to attack Petitioner’s

credibility outweighed the unfair prejudice from doing so.

Finally, the SCAWV determined that the line of questioning was not

improper under Rule 404 and 608(b) of the West Virginia Rules of

Evidence.

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Ground 7

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.

Ground 7(1)

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.

Ground 7(2)

In Ground 7(2), Petitioner alleges that his rights under the

5th, 6th, and 14th Amendments to the United States Constitution

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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).

Ground 7(3)

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 7(4)

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.

Ground 7(5)

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.

Ground 7(6)

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,

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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:

•

The prosecutor’s statement that witness

Katie Draughton testified that Petitioner

told her he had been robbed in the woods in

Summer Hill;

•

The prosecutor’s statement that Chareese

Davis had testified that Petitioner asked

her for $300;

•

The prosecutor’s statement that Angela’s

children’s father, Andre White, was in

Hagerstown, Maryland, on the night of the

crime, which gave Andre White an alibi; and

•

The prosecutor’s “chopp[ing] up and

deliberately alter[ing]” portions of

Petitioner’s testimony to make the jury

believe he had given inconsistent

statements.

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Ground 7(7)

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:

•

That paramedics saw no soot on Daronte’s

shirt;

•

That both Angela’s and Andre’s throats had

been cut; and

•

That “[n]one of the neighbors hear this

mystery car.”

ECF No. 90 at 26–27.

The SCAWV found that these comments did not arise to

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Ground 7(8)

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 7(9)

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.

B. JUDICIAL MISCONDUCT

“Due process secures a criminal defendant’s right to an

impartial trial judge.” Smith v. Mirandy, No: 2:14-cv-18928, 2016

WL 1274592, at *25 (S.D.W. Va. Mar. 31, 2016) (citations omitted).

In order for a trial to constitute a denial of due process based

on judicial behavior, “a [petitioner] must show a level of bias

that made ‘fair judgment impossible.’” Rowsey v. Lee, 327 F.3d

335, 341 (4th Cir. 2003). If a trial judge’s behavior “reaches

such a level of prejudice” that a defendant is denied a fair trial,

a new trial is required. United States v. Parodi, 703 F.2d 768,

776 (4th Cir. 1983) (citation omitted). Here, Petitioner has

not met his burden in alleging that judicial misconduct occurred

during his trial. AS discussed below, the Court finds that his

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

judicial misconduct claims must be dismissed.

Ground 6

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. See

McGuire, 502 U.S. at 71–72. However, when circumstances impede the

fundamental fairness of the trial and impinge on constitutional

protections, a federal habeas court may review them. See Marshall

v. Lonberger, 459 U.S. 422 (1983).

Petitioner’s requested instruction was based upon Syllabus

Point 2 of State v. Dobbs, 259 S.E.2d 829 (1979), which provides

that “[c]ircumstantial evidence will not support a guilty verdict,

unless the fact of guilt is proved to the exclusion of every

reasonable hypothesis of innocence; and circumstances which create

only a suspicion of guilt but do not prove the actual commission

of the crime charged, are not sufficient to sustain a conviction.”

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

This was overruled in State v. Guthrie when the SCAWV wrote that

“there is no qualitative difference between direct and

circumstantial evidence.” 461 S.E.2d 163, 175 (W. Va. 1995). The

court further stated that there is “only one standard of proof in

criminal cases and that is proof beyond a reasonable doubt.” Id.

Importantly, “an additional instruction on circumstantial evidence

is no longer required even if the State relies wholly on

circumstantial evidence.” Id.

A review of the trial transcript provides the following:

THE COURT: Morning. Let’s go on and I

understand there’s some objections to

instructions.

MR. PREZIOSO: Well, Judge, if I could. I read

through here. I didn’t even find a

typographical error in any of these

instructions. I think they are, in complete

candor to the Court, correct, and the way you

said it malice, I don’t have any problem or

objection with that because there’s different

malice for the murder and then the arson.

I went out and spoke to Mr. Prophet. He

reviewed the instructions. He sought to have

his own instruction added that I submitted to

Court and Counsel. Again, the law is what I

typed up. To give you an understanding is from

State versus Dodds which is a case that is

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

overruled. I don’t know if it’s necessary to

offer this. I think it’s contemplated in the

reasonable doubt instruction; however, Mr.

Prophet wanted to make a record of that and

wanted to offer it into the record.

THE COURT: I don’t think it’s a correct

statement of the law. I don’t think that it’s

required that all reasonable opportunity by

others to have committed the crime is the

standard. The State doesn’t have the burden

and the evidence doesn’t that all reasonable

opportunity by others to have committed it

need be proved. It may be why it was overruled.

I understand it went further on to direct

versus circumstantial, but that statement as

it’s taken in isolation like that is number

one, impractical because there’s not a

requirement of proof beyond all reasonable

doubt.

MR. PREZIOSO: I explained it to him the way

that they’re still required, of course, to

prove guilt beyond a reasonable doubt. I

explained that to him. Just note our objection

to it.

ECF No. 52-32 at 4–5.

The SCAWV found “that the circuit court’s refusal to give the

instruction from Dobbs is not in error because this language is no

longer a correct statement of the law.” ECF No. 52-15 at 25. This

Court agrees. The trial court did not deny Petitioner a fair trial

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

by refusing to give the requested jury instruction. Petitioner has

failed to show that the state court’s decision was based in either

an unreasonable factual determination or an unreasonable

application of federal law, so he is not entitled to relief on

this ground.

Ground 8

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.” United

States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995) (quoting

Liteky v. United States, 510 U.S. 540, 556 (1994)). Further,

“judicial remarks during the course of a trial that are critical

or disapproving of, or even hostile to, counsel, the parties, or

their cases, ordinarily do not support a bias or partiality

challenge. . . . [T]hey will do so if they reveal such a high

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

degree of favoritism or antagonism as to make fair judgment

impossible.” Liteky, 510 U.S. at 555. A trial judge, though, must

conduct himself or herself in a way that “never reaches the point

at which it appears clear to the jury that the court believes the

accused is guilty.” United States v. Ecklin, 528 F. App’x 357, 362

(4th Cir. 2013).

Ground 8(1)

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.” Id. at 73. This statement was outside of the purview

of a jury. It was reasonable, therefore, for the state court to

find that the remark had no bearing on Petitioner’s conviction. It

did not deprive him of a fair trial, and he is not entitled to

relief.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 8(2)

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. Id. at 73–74. Petitioner alleges that two months before

Petitioner’s trial, in another unrelated criminal matter, the

trial judge rejected a plea deal for Medina in an unrelated case,

in which Medina had agreed to testify adversely against Petitioner

in this case. Petitioner writes, “At that time, it has been

reported that Judge Wilkes intimated that he would not accept that

negotiated plea deal for Medina because he felt that Medina had

more information than he was letting on to regarding the Petitioner

and the case against him.” Id. at 74. Petitioner alleges that the

trial judge “utilized his judicial power and position to

effectively manipulate or otherwise coerce Medina into

artificially strengthening the State’s case against” him. Id.

The SCAWV found that the claims of judicial misconduct, to

the extent that they are not a rehashing of assignments of error

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Ground 8(3)

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).

Ground 8(4)

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

listed above.

Ground 8(5)

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-Miranda silence. 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.

Ground 8(6)

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:

Q: But the floor underneath of you at that

point was not on fire; is that right?

A: What? Did I run through fire is what you’re

asking?

THE COURT: No. She asked you the floor

underneath was not on fire. Answer the

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

question.

WITNESS: The floor underneath. I don’t —

THE COURT: Well, previously you testified to

the fact that you didn’t look around and you

didn’t know so you have to be specific in your

answers to her questions.

WITNESS: She has to be —

THE COURT: Don’t be argumentative.

WITNESS: I’m not being argumentative. I’m just

trying to understand her question.

THE COURT: Let’s get something straight here.

You’re not going to tell me what you’re doing

or not. I’m going to. Answer her question

specifically.

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. See Castner, 50 F.3d at 1274 (quoting

Liteky, 510 U.S. at 556)). The newly-impaneled jury was

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

specifically instructed by the trial judge as follows:

Anything I do shouldn’t be considered by you

as to how I think you should decide any of the

facts. That’s totally your 50 percent. My 50

percent is instructing you as to what the law

is and ruling on the admissibility of the

evidence at other trial procedure matters.

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.

Ground 8(7)

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.

Ground 8(8)

In Ground 8(8), Petitioner alleges that his rights under the

5th, 6th, and 14th Amendments to the United States Constitution

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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:

THE COURT: That — now, this [911 call] came

from the Defendant’s phone and the State

doesn’t want that in to say — I’m just saying

my gosh, here is what I would do with it. I

would say — well, I don’t try the cases.

MS. GAMES-NEELY: Yes, your honor. And I know

exactly what I’m going to do with it if the

Court allows it in.

. . .

THE COURT: So what you want — in looking at

this I called the police three days in advance

to say Joseph Medina is going to commit this

crime but I’m not going to tell you he’s going

to do it to me and that I’m worried about it?

MS. GAMES-NEELY: That’s correct.

THE COURT: Wow.

. . .

THE COURT: If [the defense does somehow get

this evidence before the jury], all I can see

is looking at the jury and saying, ladies and

gentlemen of the jury, here we are on a first-

degree murder charge and we have evidence that

the Defendant used his phone to call three

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

days before the crime to say it was going to

happen and somebody else was going to do it.

Certainly if the jury tends to believe that

that takes care of premeditation.

MS. GAMES-NEELY: Right.

. . .

THE COURT: I can definitely see the Defense

wanting to keep [this evidence] out. Boy.

. . .

THE COURT: If it’s in evidence [the

prosecutor] can say — personally — well, I

think it would be great to say did you call

911 to say you were going to commit this crime.

MS. GAMES-NEELY: Exactly.

THE COURT: We all as lawyers have taken that

step off the bridge of faith and sometimes

tumbled, but Mr. Prezioso and Mr. Manford

rarely stumble if — tumble by opening the door

that way. If the — wow.

ECF No. 52-27 at 9–16. Petitioner also cites another exchange

during the trial:

MR. MANFORD: Second Objection would be subject

to the rules of Evidence how this — how would

this [novel] be relevant.

THE COURT: I don’t know. I’ve not read the

book.

MR. PREZIOSO: Exactly.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

THE COURT: But I’m assuming the prosecutor has

and they can give me a proffer as to what it

is. I would anticipate she’s going to say it

somehow mirrored something he testified to.

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 8(9)

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.

C. INSUFFICIENCY OF THE EVIDENCE

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. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Ground 9

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.” Guthrie, 461 S.E.2d at 181. “As a

practical matter, premeditation generally can be proved only by

circumstantial evidence” and “must ordinarily be inferred from the

objective facts.” State v. Larock, 470 S.E.2d 613, 624 (W. Va.

1996).

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,

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

D. INEFFECTIVE ASSISTANCE OF COUNSEL

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

“‘Deficient performance’ is not merely below-average performance;

rather, the attorney’s actions must fall below the wide range of

professionally competent performance.” Griffin v. Warden, 970 F.2d

1355, 1357 (4th Cir. 1992).

Second, the defendant must show that the deficient

performance prejudiced the defendant. Strickland, 466 U.S. at 687.

“This requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.” Id. Petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

There is a “strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound

trial strategy.’” Id. at 689.

In a § 2254 proceeding, this Court does not examine whether

the Strickland standard is met. It examines whether the state

court’s application of Strickland was unreasonable. Importantly,

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

an unreasonable application is different from a from an incorrect

application. Harrington v. Richter, 562 U.S. 86, 101 (2011).

Ground 10

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.

Ground 10(1)

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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

that his blood was [actually] in the woods,

where the blood was in the woods, that he

notified counsel to investigate where to

search for blood, that counsel refused to

search for blood, or that finding his blood in

the woods somehow would have affected the

outcome of the trial.

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. Id.

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Grounds 10(2) and 10(3)

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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

limine, 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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Grounds 10(4) – 10(12)

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-Miranda silence.

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Ground 10(13)

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.

Ground 10(15)

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

misconduct. The trial court did not engage in misconduct.

Therefore, this claim has no merit, and Petitioner is not entitled

to relief.

Ground 10(16)

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.

E. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Ground 12

Petitioner “is afforded the right to effective assistance of

counsel as to his first appeal as of right.” Grimes v.

Pszczolkowski, No. 1:14CV13, 2015 WL 144619, at *7 (N.D.W. Va.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

Jan. 12 2015) (citing Evitts v. Lucey, 469 U.S. 387, 396–97 (4th

Cir. 2000)). “The standard for reviewing a claim of ineffective

assistance of appellate counsel is the same as when reviewing the

effectiveness of trial counsel.” Lucas v. McBride, 505 F. Supp. 2d

329, 350 (N.D.W. Va. 2007). The Supreme Court has found the found

that a defendant

must first show that his counsel was

objectively unreasonable, in failing to find

arguable issues to appeal — that is, that

counsel unreasonably failed to discover

nonfrivolous issues and to file a merits brief

raising them. If [the defendant] succeeds in

such a showing, he then has the burden of

demonstrating prejudice. That is, he must show

a reasonable probability that, but for his

counsel’s unreasonable failure to file a

merits brief, he would have prevailed on his

appeal.

Smith v. Robbins, 528 U.S. 259, 285 (2000) (internal citations

omitted). The Supreme Court has recognized the importance of

appellate counsel selecting the most promising issues for review.

Jones v. Barnes, 463 U.S. 745, 752 (1983). Counsel has wide

latitude in deciding what issues to raise on appeal, and “it is

difficult to demonstrate that counsel was incompetent.” Smith, 528

U.S. at 288. As the Smith Court noted, “[g]enerally, only when

ignored issues are clearly stronger than those presented, will the

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

presumption of effective assistance of counsel be overcome.” Id.

(citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). A court

“must accord appellate counsel the ‘presumption that he decided

which issues were most likely to afford relief on appeal.’” Bell

v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (quoting Pruett v.

Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)).

Grounds 12(1) and 12(2)

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

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.

Ground 12(3)

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-Miranda silence remarks of

the prosecutor” described in Ground 4. As discussed above, the

prosecutor’s references to Petitioner’s pre-arrest silence were

not in error. They were challenged by defense counsel and addressed

on direct appeal. Therefore, the SCAWV’s application of law and

determination of facts were reasonable, and Petitioner is not

entitled to relief.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

F. DENIAL OF MEANINGFUL APPELLATE AND POST-CONVICTION REVIEW

Ground 13

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. Hicks

v. Oklahoma, 447 U.S. 343, 346 (1980). Contrary to Petitioner’s

arguments, Petitioner has been afforded extensive review at every

level, and his constitutional rights have been upheld. The Court

agrees with Respondent’s argument in his Memorandum of Law in

Support of his Motion for Summary Judgment:

Petitioner was afforded trial counsel,

appellate counsel, and habeas counsel. He was

afforded a direct appeal, post-conviction

proceedings, and a postconviction appeal. He

was permitted to file a direct appeal brief,

a pro se habeas petition, an amended petition,

by counsel, and a brief challenging the

circuit court’s denial of habeas relief. Both

the circuit court and the WVSCA issued

opinions and orders discussing Petitioner’s

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

claims. Petitioner was permitted to file all

of his claims before the state courts,

culminating in this lengthy 2254 Petition.

Petitioner cannot legally dispute that he was

afforded the full panoply of constitutional

rights provided to a convicted criminal

defendant, simply because his claims were

correctly found to be meritless.

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.

G. CUMULATIVE ERROR

Ground 11

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

analysis is to address that possibility.” United States v. Rivera,

900 F.2d 1462, 1469 (10th Cir. 1990). A “legitimate cumulative-

error analysis evaluates only the effect of matters actually

determined to be constitutional error, not the cumulative effect

of all of counsel’s actions deemed deficient.” Fisher v. Angelone,

163 F.3d 835, 852 n.9 (4th Cir. 1998).

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. See id.

at 852 (writing that “[h]aving just determined that none of

counsel’s actions could be considered constitutional

error . . . it would be odd, to say the least, to conclude that

those same actions, when considered collectively deprived [the

defendant] of a fair trial”).

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

he is entitled to relief, and although a pro se petitioner is

entitled to liberal construction of his pleadings, he is still

“expected to state facts that point to a real possibility of

constitutional error” in a habeas petition. See Samples v. Ballard,

860 F.3d 266, 275 (4th Cir. 2017). Further, the claim regarding

the changing of the trial venue has already been procedurally

barred. As to Petitioner’s claim regarding a witness’s informing

the jury that Petitioner was in jail, the petition provides no

argument in support of this claim and fails to explain how it is

cumulative error. See ECF No. 13-1 at 5. No facts have been

provided to evidence that such comments prejudiced the jury.

Accordingly, these conclusory allegations are either

insufficiently pled or procedurally barred and do not overcome

Respondent’s Motion for Summary Judgment.

IV. CONCLUSION

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 ORDERS

the following:

•

the R&R is ADOPTED [ECF No. 96] to the

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],

GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND

DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

extent not modified in this Memorandum

Opinion and Order;

•

Petitioner’s Objections are OVERRULED [ECF

No. 98];

•

Respondent’s Motion for Summary Judgment is

GRANTED [ECF No. 81];

•

Petitioner’s Motion to Expedite Review is

DENIED AS MOOT [ECF No. 93];

•

Petitioner’s § 2254 petition is DENIED [ECF

No. 13]; and

•

this action is DISMISSED WITH PREJUDICE and

STRICKEN from the Court’s active docket.

It is so ORDERED.

The Court directs the Clerk to enter a separate judgment order

and to transmit copies of it and this Order to the pro se petitioner

via certified mail, return receipt requested.

DATED: August 19, 2019

___________________________

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.