Walton v. Ballard

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

TONY J. WALTON,

Petitioner,

v. CIVIL ACTION NO. 2:15-cv-11423

DAVID BALLARD,

Warden

Respondent.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Tony J. Walton’s (“Petitioner”) petition pursuant to 28 U.S.C.

§ 2254 for Writ of Habeas Corpus by a Person in State Custody (“§ 2254 Petition”), (ECF No. 1),

and Respondent’s Motion for Summary Judgment, (ECF No. 56). On March 24, 2017, this action

was re-referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed

findings and recommendations for disposition (“PF&R”). (ECF No. 32.) On November 20,

2017, Magistrate Judge Eifert filed her PF&R, (ECF No. 64), recommending that this Court grant

the Motion for Summary Judgment, and deny and dismiss the § 2254 Petition. Objections to the

PF&R were due by February 5, 2018, and Petitioner timely filed objections on December 14, 2017

(“Objections”).1 (ECF No. 68.)

1 Petitioner contemporaneously filed a Motion to Exceed the Page Limitation with his Objections. (ECF No. 67.)

The Court GRANTS the motion and will consider Petitioner’s objections in their entirety.

For the reasons discussed herein, the Court OVERRULES the Objections, ADOPTS the

PF&R, GRANTS the Motion for Summary Judgment, DENIES Petitioner’s Petition for a Writ of

Habeas Corpus, and DISMISSES this case from the docket of the Court.

I. BACKGROUND

On December 11, 2009, Petitioner was found guilty of one count of first-degree robbery

and one count of assault during the commission of a felony after a jury trial in the Circuit Court of

Fayette County, West Virginia. (ECF No. 13-1 at 384.) On January 26, 2010, Petitioner was

sentenced to 50 years’ imprisonment for the robbery and 2 to 10 years’ imprisonment for the

assault. (ECF No. 13-2 at 24.) The complete factual and procedural history of Petitioner’s direct

appeal and habeas proceeding in state court, as well as a review of Petitioner’s claims in his federal

habeas petition, are set forth in detail in the PF&R and need not be repeated here. Petitioner, in

his Objections, concedes the accuracy of this history. (See ECF No. 68 at 1.) As such, the Court

adopts the factual and procedural history as set forth in the PF&R. The Court will provide a

discussion of any relevant facts from Petitioner’s original criminal case as necessary throughout

this opinion to resolve Petitioner’s objections. The § 2254 Petition claims the following grounds

for relief:

1. Actual Innocence – “There was overwhelming evidence to prove that Petitioner

was innocent of the robbery charges against him that were not used in the

defense of Petitioner. . . . [I]t is crystal clear that if the evidence was used

properly in the defense of Petitioner, it is more likely than not, that no

reasonable juror would have convicted Petitioner.”

2. Ineffective Assistance of Counsel – Defense Counsel’s inexperience and the

actions taken or lack thereof by counsel resulted in ineffective assistance of

counsel, violating Petitioner’s rights under the Sixth Amendments.

3. Denial of Fair and Impartial Jury – Defense Counsel’s failure to make

objections during voir dire and connections between jurors and the prosecution

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and interested parties denied Petitioner of his constitutional right to a fair and

impartial jury violating the Fifth and Fourteenth Amendments.

4. Use of Lineup Photo – It was a violation of Defendant’s rights and the Fifth and

Fourteenth Amendments when the State used the photo lineup to identify

Petitioner, as there was no foundation for the admission of the photo. Defense

Counsel also failed to object to the admission.

5. Improper Jury Instruction – “An erroneous instruction given by the trial judge

[regarding intimidation and retaliation against jurors and witnesses] deprive[d]

petitioner of his federal constitution, a right to a fair trial . . . .”

6. Denial of the Right to a Jury of One’s Peers – “. . . [T]here was no people of

color on the panel to choose from . . . . The town . . . where petitioner went to

trial is well known to be a racist town . . . .”

7. Ineffective Assistance of Appeal Counsel – “Appeal counsel . . . did not consult

him once while preparing petitioner appeal. There were errors by trial court

that needed discussed.”

(ECF No. 1-1.) The PF&R thoroughly analyzes each of Respondent’s claims as argued in the

motion for summary judgment, and it recommends that this Court grant Respondent’s Motion for

Summary Judgment, (ECF No. 56), deny Petitioner’s Petition for Writ of Habeas Corpus, (ECF

No. 1), and dismiss this matter from the Court’s docket.

II. LEGAL STANDARDS

A. Review of Magistrate Judge’s Findings and Recommendations

Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court must determine de novo

any part of a magistrate judge’s disposition to which a proper objection has been made. The Court

is not required to review, under a de novo or any other standard, the factual or legal conclusions

of the magistrate judge as to those portions of the findings or recommendation to which no

objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely

objections constitutes a waiver of de novo review and the petitioner’s right to appeal this Court’s

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order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);

United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not

conduct a de novo review when a party “makes general and conclusory objections that do not direct

the Court to a specific error in the magistrate’s proposed findings and recommendations.”

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

B. Habeas Corpus Standard of Review

A federal court may grant habeas relief for a state prisoner “only on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254(a). “Therefore, when a petitioner’s claim rests solely upon an interpretation of state case

law and statutes, it is not cognizable on federal habeas review.” Weeks v. Angelone, 176 F.3d

249, 262 (4th Cir. 1999), aff’d, 528 U.S. 225 (2000).

Section 2254(d), as modified by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), provides for a deferential standard of review to be applied to any claim that was

“adjudicated on the merits” in state court proceedings. In such a case, a federal court may grant

habeas relief only if the adjudication of the claim in state court

(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; 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.

28 U.S.C. § 2254(d).

Section 2254(d)(1) describes the standard of review to be applied to claims challenging

how the state courts applied federal law. “A federal habeas court may issue the writ under the

‘contrary to’ clause if the state court applies a rule different from the governing law set forth in

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[Supreme Court] cases, or if it decides a case differently than we have done on a set of materially

indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). “The court may grant relief

under the ‘unreasonable application’ clause if the state court correctly identifies the governing

legal principle from our decisions but unreasonably applies it to the facts of the particular case.”

Id. The latter inquiry focuses on whether the state court’s application of clearly established

federal law was “unreasonable,” as distinguished from whether it was “correct.” See Renico v.

Lett, 559 U.S. 766, 773 (2010); Bell, 535 U.S. at 694; Williams v. Taylor, 529 U.S. 362, 410 (2000).

Section 2254(d)(2) describes the standard to be applied to claims challenging how the state

courts determined the facts. “[A] determination of a factual issue made by a State court [is]

presumed to be correct,” and the petitioner has “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The phrase

‘adjudication on the merits’ in section 2254(d) excludes only claims that were not raised in state

court, and not claims that were decided in state court, albeit in a summary fashion.” Thomas v.

Taylor, 170 F.3d 466, 475 (4th Cir. 1999); see also Harrington v. Richter, 562 U.S. 86, 98 (2011)

(recognizing that § 2254(d) applies even if the state court issued a summary decision

unaccompanied by an explanation). The state court determination will be upheld so long as

“fairminded jurists could disagree” on its correctness. Yarbrough v. Alvarado, 541 U.S. 652, 664

(2004).

C. Summary Judgment

Federal Rule of Civil Procedure 56 governs motions for summary judgment. That rule

provides, in relevant part, that summary judgment should be granted if “there is no genuine issue

as to any material fact.” Summary judgment is inappropriate, however, if there exist factual issues

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that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and

a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for

the nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010). When construing such factual issues, the Court must view the evidence

“in the light most favorable to the [party opposing summary judgment].” Adickes v. S. H. Kress

& Co., 398 U.S. 144, 157 (1970). “When faced with cross-motions for summary judgment, the

court must review each motion separately on its own merits to determine whether either of the

parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th

Cir. 2003) (internal quotation marks omitted) (citation omitted). The court will consider each

motion individually, “tak[ing] care to resolve all factual disputes and any competing rational

inferences in the light most favorable to the party opposing that motion.” Id. (internal quotation

marks omitted) (citation omitted). The nonmoving party may not rest on the pleadings alone and

must show that specific material facts exist by offering more than a mere “scintilla of evidence”

in support of his position. Anderson, 477 U.S. at 252.

III. DISCUSSION

Petitioner lodges six specific objections to the PF&R and asserts that Magistrate Judge

Eifert failed to address two contentions raised in Respondent’s Motion for Summary Judgment.

The Court ADOPTS and AFFIRMS the PF&R, without de novo review, in regard to all of the

claims which Petitioner has failed to object to. In regard to the claims that Petitioner has lodged

his objections, the Court will now conduct a de novo review.

A. Ineffective Assistance of Counsel

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Petitioner’s specific objections to the PF&R concern the alleged ineffective assistance of

counsel (“IAC”) by his Defense Counsel at the trial level. These objections relate to the PF&R’s

conclusion that Respondent is entitled to summary judgment as to Ground 2 of the § 2254 Petition.

(See ECF No. 1-1 at 14–24.)

Petitioner must overcome two layers of deference for the Court to sustain his IAC

objections. First, the Supreme Court’s pronouncement in Strickland accords to his counsel a

“highly deferential” level of judicial scrutiny. Strickland v. Washington, 466 U.S. 668, 689

(1984). Courts “must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance . . . .” Id. The burden falls to Petitioner to

demonstrate otherwise. See id. at 690 (“A convicted defendant making a claim of ineffective

assistance must identify the acts or omissions of counsel that are alleged not to have been the result

of reasonable professional judgment. The court must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.”). If counsel made a “strategic choice” after “thorough investigation of law

and facts,” the act is “virtually unchallengeable.” Id. Acts or omissions not determined to be

strategic—either because they were not adequately informed or they were not conscious decisions

at all—are still analyzed by an objective reasonableness standard. See Roe v. Flores-Ortega, 528

U.S. 470, 481 (2000); Kimmelman v. Morrison, 477 U.S. 365, 375, 386 (1986).

If the reviewing court determines under this deferential standard that counsel’s action fell

outside the accepted range of professionally reasonable conduct, the challenger must also show

that he was prejudiced by the errors—that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

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U.S. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the

outcome. Id. In addressing IAC claims, courts may address either issue—counsel’s

performance or prejudice from the alleged error—first, since a finding adverse to the petitioner on

either issue is dispositive. See id. at 697 (“There is no reason for a court deciding an ineffective

assistance claim . . . to address both components of the inquiry if the defendant makes an

insufficient showing on one. . . . If it is easier to dispose of [the] claim on the ground of lack of

sufficient prejudice, . . . that course should be followed.”).

In addition to this deferential standard, § 2254 petitioners making IAC claims must show

that the reviewing state court applied Strickland unreasonably. See Elmore v. Ozmint, 661 F.3d

783, 856–66 (4th Cir. 2011). The Supreme Court has noted that “[t]he standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted) (citations omitted)

(noting that “[s]urmounting Strickland’s high bar is never an easy task” and that “[e]stablishing

that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more

difficult”). “When § 2254(d) applies, the question is not whether counsel’s actions were

reasonable. The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. Ultimately, “a state prisoner must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 103.

1. Cross-Examination of Victim

First, Petitioner objects to the PF&R’s conclusion “that the circuit court’s decision that

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Petitioner’s trial counsel was not constitutionally ineffective in addressing the victim’s

‘inconsistent’ identifications of Petitioner at trial was not contrary to, or an unreasonable

application of, clearly established federal law.” (See ECF No. 64 at 13–15.) The PF&R finds

that Respondent is entitled to summary judgment on this ground. (Id. at 15.)

Petitioner originally raised this argument in his state habeas corpus petition, (ECF No. 13-

7 at 10.), for which the Circuit Court of Fayette County conducted an evidentiary hearing that

included testimony from Petitioner’s trial counsel, Elizabeth Kearney Campbell. (See ECF No.

13-9.) In its ruling, the circuit court notes that Petitioner framed his argument on the basis that

his counsel “did not put on any evidence about discrepancies in the descriptions;” an assertion that

was “blatantly false.” (See ECF No. 13 at 60.) The circuit court reviewed the transcript of the

underlying trial and found that trial counsel “subjected [the victim] to considerable cross

examination on the issue of inconsistences in her descriptions of the attacker.” (See id.)

Furthermore, regarding trial counsel’s use of the inconsistent descriptions in the 911 tape, the

circuit court found that trial counsel made a “strategic and tactical move” and “did a reasonably

adequate job of attempting to exploit these slight discrepancies.” (See id. at 60–61.) The circuit

court ultimately determined that trial counsel’s performance was not “deficient under an objective

standard of reasonableness.” (See id. at 61.) On appeal, the Supreme Court of Appeals of West

Virginia (“SCAWV”) found that there was no error or abuse of discretion by the circuit court and

adopted the circuit court’s “well-reasoned findings and conclusions of law . . . .” (See ECF No.

13-8.) Accordingly, 28 U.S.C. § 2254(d) applies, and the question becomes whether the state

court’s adjudication of Petitioner’s cross-examination claim “was an unreasonable application” of

Strickland or involved an unreasonable determination of the facts in light of the evidence

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presented. See § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011) (“The rule

and analytical framework announced by the Supreme Court in Strickland ‘unquestionably qualifies

as “clearly established” federal law under § 2254(d).’” (quoting Frazer v. South Carolina, 430

F.3d 696, 703 (4th Cir. 2005))).

Petitioner objects on the basis that “[c]ounsel failed to enter evidence of [the] victim’s

inconsistent descriptions.” (See ECF No. 68 at 2–13.) This Court is in concurrence with the

preceding courts that Petitioner’s objection is blatantly false. This is demonstrated by the

following passages from the trial transcript:

BY MS. KEARNEY [CAMPBELL]:

Q Can I first start off with asking, do you remember how many descriptions you

gave to law enforcement as they were investigating this or –

THE COURT: Or 911?

BY MS. KEARNEY [CAMPBELL]

Q To 911 and the investigating officers, do you remember how many times they

made you describe what was going on?

A No, ma’am.

Q We heard testimony today from law enforcement that you described your attacker

as a light-skinned black man with a gray hoodie, sweat pants and gloves. Is that

correct?

A Yes

Q You also had the opportunity to describe to the 911 Center in your phone call to

them – after the attack happened, you had an opportunity and they asked you to

describe your assailant. Do you remember that?

A I remember talking to the 911 Center that day.

Q Okay. And they asked you when -- if you could describe your attacker, and you

did so. And I have a copy of the transcription of the 911 call. And if I could just

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refresh your memory, I will let you know what you reported to the 911 Center, and

you can tell me if that’s accurate. Okay?

A Yes.

Q Okay. The 911 Center asked you, “Is there anything you can tell me about this

black male?” And you replied to them, “He is very, very black. Wore jersey

gloves, brown-looking things.” Do you remember making that statement? Is it fair

to say that you made that to the 911 Center?

A Ma’am, I’m honestly -- I don’t -- I’m not sure.

Q Okay. All right. I know it happened right after the attack, so I understand where

your memory might not be as good because of the trauma. But would you disagree

with me that

MR. PARSONS: Your Honor, she can’t disagree if she doesn’t remember making

the statement.

THE COURT: Well, I’m going to overrule the objection. If the 911 tape has you

saying that, ma’am, do you dispute that you told 911 that?

THE WITNESS: No, sir. That day was just a it was -- it was not a good day I –

(ECF No. 13-1 at 184–86.) Trial counsel clearly brought the inconsistent descriptions given by

the victim to the attention of the jury by eliciting the response during cross-examination and

addressing them again during closing arguments, (see id. at 352–54). However, Petitioner further

asserts that “if the 911 tape would have been entered into evidence it would have seriously called

the victims [sic] description into question which would have caused the reasonable doubt the jury

needed to acquit.” (See ECF No. 68 at 2.) Petitioner attempts to argue that trial counsel’s actions

were unreasonable and prejudicial, and that trial counsel’s omission of admitting the 911 tape into

evidence implicates Strickland, but his argument fails. The method that counsel chooses to use

evidence in a trial falls squarely within the highly deferential standard and strong presumption that

such conduct falls within the wide range of reasonable profession assistance provided to counsel

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under Strickland. Strickland, 466 U.S. 668, 689 (1984). Here, trial counsel’s decision to not use

the 911 tape, but cross-examine the victim regarding the statements made on the 911 tape, was

clearly a strategic choice by trial counsel, which the Strickland court has found as virtually

unchallengeable. Id. at 690. Trial counsel testified during her evidentiary hearing that she made

a conscious choice not to play or enter the 911 tape into evidence because she believed that playing

the emotionally charged tape, which included clips of the victim screaming and crying, could

detrimentally affect Petitioner. (See ECF No. 13-9 at 43–45, 71–73.) Further, trial counsel

testified that, through discussion with Petitioner, the focus of their case would be primarily upon

his defense in alibi and the forensic evidence and she wanted to avoid vigorously cross-examining

a witness, the victim, who appeared to be very frail and could end up hurting Petitioner’s case.

(Id. at 39–44.) The Court does not find that trial counsel acted outside the wide range of

professionally competent assistance.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s cross-examination of the victim.

2. Failure to Investigate Evidence

Second, Petitioner objects to the PF&R’s conclusion that “Petitioner’s trial counsel was

not constitutionally ineffective in not forensically investigating the physical evidence or

challenging the state’s failure to do so is not contrary to, or an unreasonable application of, clearly

established federal law.” (See ECF No. 64 at 15–20.) The PF&R finds that Respondent is

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entitled to summary judgment on this ground. (Id. at 19–20.)

The circuit court’s analysis of the claim began with Chief Deputy Canterbury’s testimony

at trial in which he stated that he observed parts of a broken mirror and bloodstain on the floor at

the crime scene, in addition to a possible footprint going through the bloodstain (which was

illustrated in State’s Exhibit 10). (ECF No. 1-2 at 38.) The circuit court then noted that the

victim testified that she was pushed into mirrors, which resulted in her bleeding onto the floor.

(Id. at 38–39.) The circuit court ultimately concluded that the smeared bloodstain failed to show

any identifiable footprints, and thus in conjunction with the testimony of the victim and Chief

Deputy Canterbury, did not render Petitioner’s trial counsel deficient under an objective standard

of reasonableness in failing to introduce evidence of blood samples or shoe size. (Id.)

As to Petitioner’s claim regarding counsel’s investigation of the bloodstain, Petitioner

objects on the basis that trial counsel should have investigated the bloodstain for exculpatory

evidence because “Petitioner is innocent of this crime,” and a proper investigation would have

shown as such. (See ECF No. 68 at 13–19.) Under Strickland, counsel “has a duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations

unnecessary. . . . [A] particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” 466 U.S. at 691. If counsel “conducts a reasonable investigation of law and facts

in a particular case, his strategic decisions are ‘virtually unchallengeable.’” Powell v. Kelly, 562

F.3d 656, 670 (4th Cir. 2009) (quoting Strickland, 466 U.S. at 688). To prevail on an IAC claim

based on a failure to investigate, a petitioner must specify “what an adequate investigation would

have revealed . . . .” Bassette v. Thompson, 915 F.2d 932, 940–41 (4th Cir. 1990).

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Here, Petitioner’s objection is largely based on speculation. Petitioner argues that it is

possible that the testing could have shown that the bloodstain or footprint did not belong to the

victim or Petitioner, thus proving Petitioner’s innocence. (ECF No. 68 at 17.) The victim stated

the bloodstain at the scene of the crime came from her head wound. (ECF No. 13-1 at 170, 173.)

It is reasonable in light of the circumstances that based on this testimony that trial counsel would

not find that testimony to be false, especially under the high standard of deference provided to

counsel’s judgments regarding investigation. No sufficient evidence exists that would have

allowed an investigation regarding the shoeprint. Further, Petitioner has not suggested, nor can

he, what an investigation may have revealed.

Additionally, Petitioner argues that trial counsel should have questioned and impeached

the investigating officers for their failure to collect and preserve possible exculpatory evidence.

(See ECF No. 68 at 18–19.) Petitioner jumps on the fact that trial counsel admitted during the

circuit court hearing that in hindsight she should have raised the issue of the police’s failure to

collect physical evidence or perform any forensic testing at the scene of the crime. (Id.; ECF No.

13-9 at 58.) However, the Strickland court clearly addressed hindsight analysis:

Judicial scrutiny of counsel’s performance must be highly deferential. It is

all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable. A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.

Strickland, 466 U.S. at 689 (1941) (internal citations omitted). Furthermore, as noted above, if

counsel made a “strategic choice” after “thorough investigation of law and facts,” the act is

“virtually unchallengeable.” Id at 690. Acts or omissions not determined to be strategic—either

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because they were not adequately informed or they were not conscious decisions at all—are still

analyzed by an objective reasonableness standard. See Roe v. Flores-Ortega, 528 U.S. 470, 481

(2000); Kimmelman v. Morrison, 477 U.S. 365, 375, 386 (1986).

As noted, trial counsel’s acceptance of the statements by the victim and Chief Deputy

Canterbury were not an unreasonable strategic decision in lieu of a possible investigation. Trial

counsel’s strategic decision to focus on the inconsistent statements instead of this evidence does

not amount to unreasonableness under an objective standard. The law, as noted, is extremely

deferential to the decisions trial counsel may make in the course of their professional assistance

and this Court should not second-guess trial counsel’s professional judgment after a finding that

trial counsel acted reasonably based on an objective standard.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s failure to investigate.

3. Photo Lineup Identification

Third, Petitioner objects to the PF&R’s conclusion that the use of a photo line up to identify

Petitioner was not contrary to, or an unreasonable application of, clearly established federal law

and that trial counsel’s failure to object to the admission of the photographic line-up was not

ineffective assistance of counsel. (See ECF No. 64 at 20–26.) The PF&R finds that Respondent

is entitled to summary judgment on this ground. (Id. at 26.)

The circuit court began by reviewing the case law under West Virginia law and the

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requirements thereof regarding the use of a photographic line-up for an out-of-court identification.

(ECF No. 1-2 at 25.) In applying the law to the facts of the case, the circuit court determined that

the photographic line-up used in Petitioner’s case was not suggestive and was consistent with

applicable law. (Id. at 25–26.) The circuit court then turned to Petitioner’s argument against

admission of the out-of-court identification at trial. The circuit court applied the test established

in Neil v. Biggers, 409 U.S. 188, 199–200 (1972), to evaluate “whether under the ‘totality of the

circumstances’ the identification was reliable” if the confrontation procedure was suggestive.

(ECF No. 1-2 at 33–36.) Upon analysis of the factors presented in Biggers, the circuit court found

that Petitioner’s trial counsel could have objected to the foundation for the admission of the

photographic line-up and the identification of Petitioner through the testimony of the person who

prepared the photographic line-up, as opposed to the officer who conducted the actual

identification, as hearsay testimony. (Id. at 26–36.) On this basis, the circuit court determined

that trial counsel’s failure to object to the admission of the photographic line-up and out-of-court

identification of Petitioner was deficient under an objective standard of reasonableness and thus

met the first Strickland prong. (Id. at 28.) However, the circuit court ultimately determined that

there was not a reasonable probability that the result of the proceeding would have been different

“but for” trial counsel’s error. (Id.) The circuit court based its decision on the victim pointing

out the Petitioner and identification of Petitioner in the courtroom as the man who attacked her.

(Id. at 30.) The circuit court further noted that the officer who witnessed the victim’s

identification of Petitioner from the photographic line-up was present at trial and available to

testify and the victim testified that the State’s Exhibit 21 was the photographic line-up that she was

shown and pointed to the photograph of Petitioner that she identified on that earlier date. (Id. at

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28–31.)

Petitioner objects on the basis that allowing the admission of the testimony is a violation

of his constitutional rights and prejudiced him from being acquitted. (See ECF No. 19–27.)

However, for a court to find that counsel acted in violation of Strickland, a defendant must enable

a court to determine under this deferential standard that counsel’s action fell outside the accepted

range of professionally reasonable conduct, and the challenger must show that he was prejudiced

by the errors—that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Here, while

Petitioner asserts that the admission was in violation of constitutional standards and that the circuit

court found that trial counsel’s actions were unreasonable under Strickland, Petitioner fails to make

a showing of prejudice. The victim testified at trial that the State’s Exhibit 21 was the

photographic line-up that she was shown on the day of the robbery and she pointed to the

photograph of Petitioner that she previously identified. (ECF No. 13-1 at 174.) The victim also

identified Petitioner in the courtroom as the man who attacked her. (Id. at 178.) Petitioner’s

failure to make a showing of prejudice and the victim’s ultimate identification of Petitioner in the

courtroom as the man that attacked her are enough to persuade this Court that there was no

prejudice from the alleged error by trial counsel.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s failure to object to the admission of the photo line-up.

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4. Detective Sizemore’s Testimony

Fourth, Petitioner objects to the PF&R’s conclusion that “Petitioner’s trial counsel was not

constitutionally ineffective by not objecting to Detective Sizemore’s testimony” and that

“Petitioner’s additional claims that his trial counsel was ineffective because she did not perform

additional investigation, cross-examination, or offer alterative theories to rebut Detective

Sizemore’s testimony are procedurally defaulted and to the extent that they are not procedurally

defaulted, those claims are also without merit.” (See ECF No. 64 at 26–38.) (emphasis in

original). The PF&R finds that Respondent is entitled to summary judgment on this ground. (Id.

at 38.) As only one of these claims has been exhausted, the Court will address them separately.

a. Lack of Objection to Expert Testimony

On habeas review, the circuit court agreed with Petitioner’s trial counsel’s testimony that

she did not consider Detective Sizemore’s testimony to be expert testimony. (ECF No. 1-2 at 40–

42.) Even as such, the circuit court noted that in light of Detective Sizemore’s testimony

regarding his qualifications, the court would have likely qualified him as an expert over any

objection by trial counsel. (Id. at 43.) The circuit court found that allowing Detective Sizemore

to testify “was a strategic decision to . . . in an attempt to lend credence to the defense’s overarching

theory that the police had arrested the wrong person.” (Id. at 42.) The circuit court also found

that Petitioner failed to show any reasonable probability that an objection to the testimony would

have resulted in a different outcome. (Id. at 43.)

Petitioner objects on the basis that trial counsel should have objected to the testimony

provided by Detective Sizemore because “he was a ‘lay witness’ giving ‘expert’ testimony and

was never qualified an expert by the court.” (See ECF No. 68 at 30.) Petitioner maintains that

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this failure to object gave credibility to Detective Sizemore’s misleading testimony. (See id.)

Trial counsel testified at the evidentiary hearing that it might have been better for her to seek a

pretrial hearing to challenge Detective Sizemore’s qualifications and testimony as a way to “trip

him up” or “shake him up as a witness” prior to the trial. (ECF No. 13-9 at 51–52.)

Once again, it is not the duty of this Court to lend its insight through hindsight. It is the

duty of this court to apply the Strickland standard and make an inquiry into whether counsel acted

outside the wide range of professionally competent assistance, based on the circumstances as a

whole. See Strickland, 466 U.S. at 690. If counsel made a “strategic choice” after “thorough

investigation of law and facts,” the act is “virtually unchallengeable.” Id. Trial counsel testified

that it was her strategy to focus on the lack of forensic evidence linking Petitioner to the crime.

(See ECF No. 13-9 at 51–52.) Trial counsel put this strategic plan into action during her cross-

examination of Detective Sizemore and by calling an expert in forensic science to testify. (See

ECF No. 13-1 at 136–42, 277–80.) Trial counsel’s actions are clearly a strategic choice, and are

not unreasonable or outside the wide range of professionally competent assistance, making her

actions virtually unchallengeable. Furthermore, Petitioner fails to provide any evidence of

prejudice from trial counsel’s failure to object, especially in light of the circuit court finding that

it ultimately would have found Detective Sizemore to be qualified as an expert if the State had so

moved.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court OVERRULES Petitioner’s

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objection as to IAC based on trial counsel’s failure to object to the testimony of Detective

Sizemore.

b. Lack of Investigation of Green Fluorescent Spots

Petitioner claims that his trial counsel was ineffective because she did not perform

additional investigation, cross-examination, or offer alterative theories to rebut Detective

Sizemore’s testimony, and objects to the PF&R’s conclusion that these claims are without merit.

(See ECF Nos. 1-1 at 7–17; 68 at 27–33.) The Court will choose to review these claims on the

merits only as Petitioner failed to exhaust these claims when he failed to raise them in his state

habeas proceeding.

Petitioner ultimately wanted trial counsel to investigate the pepper spray to see if it

contained a certain ingredient that would have explained the fluorescence on Petitioner’s face

during the investigation. (See ECF Nos. 1-1 at 7–17; 68 at 27–33.) He asserts that trial counsel

should have asked Detective Sizemore “whether this information was confirmed by the company

who sold mace” and investigated “these claims about the marking dye by contacting the company

that produced the mace.” (See ECF No. 68 at 30.) Petitioner wanted trial counsel to seize “the

opportunity to contact the company to be ‘sure’ of the mace’s contents concerning the marking

dye” because he believed that the fluorescence discovered on his face could have been the result

of an alternative substances such as soap or gas fumes from his four-wheeler. (Id.; ECF No. 1-

1 at 7–8.) Petitioner also asserts that trial counsel should have cross-examined Detective

Sizemore about other substances that could have caused the fluorescence. (ECF No. 1-1 at 7–8.)

As noted above, under Strickland, counsel “has a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations unnecessary. . . . [A]

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particular decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgments.” 466 U.S. at 691.

To prevail on an IAC claim based on a failure to investigate, a petitioner must specify “what an

adequate investigation would have revealed . . . .” Bassette v. Thompson, 915 F.2d 932, 940–41

(4th Cir. 1990).

Petitioner’s entire argument is based on speculation. Petitioner does not argue that the

pepper spray contained marking dye or that it did not. He merely believes that trial counsel should

have called the company that made the mace to make sure Detective Sizemore was telling the

truth. (See ECF No. 68 at 30.) An investigation might have revealed that there was no dye in

the pepper spray, but Petitioner provides no evidence that such a conclusion is likely. While it

may have been prudent for trial counsel to investigate whether there was dye in the pepper spray,

trial counsel took a different strategic path to discredit the testimony of Detective Sizemore, as

discussed above. It is not the duty of this Court to second-guess the strategic decision made by

counsel. Strickland, 466 U.S. at 689. This Court is to determine whether counsel acted

unreasonable, while according “a heavy measure of deference to counsel’s judgments.” Id. at

691. In light of the heavy deference given to counsel’s judgments, the Court does not find that

counsel’s decisions were unreasonable in all of the circumstances.

Accordingly, the Court OVERRULES Petitioner’s objection regarding trial counsel’s

failure to investigate the pepper spray.

5. Jury Bias

Fifth, Petitioner objects to the PF&R’s conclusion that “the circuit court’s decision that

Petitioner’s trial counsel was not constitutionally [deficient] in responding to what Petitioner

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contends was indicia of jury bias was not contrary to, or an unreasonable application of, clearly

established federal law.” (See ECF No. 64 at 47–52.) Specifically, this relates to the trial judge

stating on the record that a juror approached the court reporter during the lunch hour recess and

advised that the juror knew some of the spectators in the courtroom and wanted to know if it was

something that should be disclosed, (ECF No. 13-1 at 119), and during jury deliberation, the jury

foreman provided a note to the circuit court stating that the same juror who previously expressed

recognizing spectators in the courtroom was “now afraid of repercussions from the family” and

the jury was “unable to move forward at this time.” (ECF Nos. 1-1 at 27, 1-2 at 50, 13-1 at 370,

58 at 16, 58-1 at 2). The PF&R finds that Respondent is entitled to summary judgment on this

ground. (See ECF No. 64 at 52.)

On habeas review, the circuit court first addressed the juror knowing a spectator in the

gallery and trial counsel’s response to this disclosure. The circuit court found that recognition of

a spectator in a courtroom is not enough to disqualify that juror from sitting on the jury. (ECF

No. 12 at 46–47.) Furthermore, the circuit court did not find that this recognition altered the

juror’s affirmation to review the evidence without bias or prejudice based upon the spectator

recognition. (Id. at 48.) Upon these bases, the circuit court determined that Petitioner’s trial

attorney did not act deficiently by failing to act upon the juror’s statement. The circuit court even

entertained the hypothesis that had trial counsel failed to act when she should have, Petitioner

failed to show that but for her failure, there was a reasonable probability that the results of the

proceeding would have been different. (Id. at 49–50.) Concerning the note by the foreman, the

circuit court began its address of the argument by noting that trial counsel moved for a mistrial and

objected to a curative instruction, and moved for a new trial during sentencing as well. (ECF No.

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1-2 at 50–51.) While Petitioner argued that trial counsel should have asked for a voir dire instead

of a mistrial, the circuit court noted that it is not the duty of the circuit court to determine whether

a different approach should have been used by counsel based on hindsight. (Id. at 51.) Rather,

the circuit court noted that the standard under Strickland is based on whether counsel acted outside

the wide range of professionally competent assistance, which the circuit court found trial counsel

did not. (Id.) (emphasis in original).

As this Court has already noted, it is not the duty of this Court to apply its own

determination of what the appropriate course of action should have been for trial counsel. See

Strickland, 466 U.S. at 689 (1941). The standard for ineffective assistance of counsel does not

turn on a conclusion by this Court based on hindsight, but rather an inquiry into whether counsel

acted outside the wide range of professionally competent assistance, based on the circumstances

as a whole. Id. at 690. If counsel made a “strategic choice” after “thorough investigation of law

and facts,” the act is “virtually unchallengeable.” Id. To the extent that Petitioner objects to the

decisions of his counsel to not ask the trial court to conduct a voir dire of the juror, and move for

a mistrial instead of asking for a voir dire, it is a clear attempt to have the Court conduct an analysis

of trial counsel’s tactical decisions based on hindsight. Here, trial counsel did not act upon the

disclosure that a juror knew someone in the gallery. The Court does not find this to be

unreasonable, especially in light of the small town in which the trial took place as noted by the

circuit court on habeas review, (ECF No. 1-2 at 47–48). Petitioner also fails to make any showing

that the juror’s recognition of someone in the gallery was prejudicial. Further, when viewing the

circumstances as a whole, the Court does not find it unreasonable or outside of the wide range of

professionally competent assistance that trial counsel moved for a mistrial at two proceedings and

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objected to the curative instruction given by the trial judge instead of asking the trial judge to

conduct a voir dire of the jurors. The presumption in favor of counsel’s actions is very strong

and, in conjunction with the Strickland standard, this Court cannot find that trial counsel provided

ineffective assistance of counsel in her response to Petitioner’s claim of jury bias.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s failure to request a voir dire.

6. Trial Counsel’s Inexperience

Petitioner’s last objection regarding IAC involves trial counsel’s inexperience. Petitioner

objects to the PF&R’s conclusion that Petitioner failed to “establish that his trial counsel’s

performance was constitutionally deficient, nor does he show a reasonable probability that her

actions affected the outcome of his trial.” (See ECF No. 64 at 57–59.)

On habeas review, the circuit court explained that the law does not require a certain level

of experience to establish IAC; instead, the law focuses on what a reasonable attorney would have

done under the circumstances based upon an objective standard. (See ECF No. 1-2 at 14.) The

circuit court ultimately found that Petitioner’s trial counsel “spent a significant amount of time

conducting a reasonable and adequate investigation of Petitioner’s case and the mere fact that

Petitioner’s jury trial was [her] first jury trial, as lead counsel, does not support a finding of

ineffective assistance of counsel.” (Id. at 15.)

The law is clear that experience is not the basis for determining whether trial counsel’s

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actions provided ineffective assistance of counsel; instead, a court is to look at the attorney’s actual

performance. Kandies v. Polk, 385 F.3d 457, 469 n. 7 (4th Cir. 2004) (vacated on other grounds

by Kandies v. Polk, 545 U.S. 1137 (2005)). A court must determine whether the attorney’s

performance falls below “an objective standard of reasonableness.” Strickland, 466 U.S. at 687.

Here, Petitioner asserts that he was prejudiced because trial counsel did not provide effective

representation and should have removed herself from the case due to her lack of trial experience

and competence. (See ECF No. 68 at 42–47.)

As the Court has found above, Petitioner continues to assert various reasons as to why trial

counsel was ineffective, but has yet to provide sufficient evidence as such. This Court has yet to

find that based upon any of Petitioner’s objections trial counsel was ineffective under Strickland,

and it will not do so based upon her lack of experience either. Additionally, the circuit court

distinguished that this was not trial counsel’s first trial; it was her first jury trial as a lead attorney.

(ECF Nos. 1-2 at 14; 13-9 at 26.) Any finding that inexperience is by itself grounds for ineffective

assistance of counsel would have a chilling effect on young attorneys who are beginning their

courtroom experience.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s lack of experience.

B. Trial Judge’s Handling of Potential Prejudice

Petitioner alleges that Magistrate Judge Eifert failed to address his concerns regarding

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denial of an impartial jury and abuse of discretion by the trial court. (See ECF No. 68.) The

Court will address these concerns itself.

On habeas review, the circuit court determined even if bias and prejudice does present

itself, the trial court is in the best position to judge the sincerity of a juror’s pledge to abide by the

court’s instructions, and therefore it is within the trial court’s discretion to determine whether the

juror should be disqualified and that determination will not be disturbed upon appeal unless the

court clearly abused its discretion. (ECF No. 13-9 at 67.) The circuit court then turned to the

facts of the case at hand and found that the trial court assessed the potential for bias and prejudice

and determined that there was none on each occasion brought into question by Petitioner, but

addressed the jurors each time and provided a curative instruction to them. (Id. at 68–70.) The

circuit court determined that the juror’s fear of repercussions was only an obstacle to reaching a

unanimous decision, and that the trial court “took action that it deemed was necessary and

appropriate to ensure that the trial was fair for both parties.” (Id. at 70.) Finally, the circuit court

found that the trial court did not err when it gave the curative instruction because it was an

“accurate reflection of law and it was necessitated by the unusual circumstances that arose in

Petitioner’s case.” (Id. at 71–72.) The circuit court also determined that even if the trial court

erred by giving the curative instruction, it would only amount to ordinary trial error and would not

rise to the level that would implicate federal or state constitutional rights. (Id. at 72–73.)

Petitioner argues that he was denied an impartial jury and that the trial court abused its

discretion when the trial judge “failed to conduct a voir dire into the potential prejudice resulting

from a juror expressing fear of the ‘family’ during the ‘deliberation’ process which was brought

to the attention of the Court.” (Id. at 1, 47–52.) The facts surrounding the objections at hand are

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set forth in detail in the PF&R, (ECF No. 64 at 47–50) and need not be repeated here. Petitioner

does not dispute the facts. (See ECF No. 68 at 1, 48.) As such, the Court adopts the facts as set

forth in the PF&R.

A defendant is entitled to impartiality under the Sixth and Fourteenth Amendments.

Witherspoon v. Ill., 391 U.S. 510, 518 (1968). “Due process requires that the accused receive a

trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362

(1966). Furthermore, jurors are presumed to be impartial and “the defendant bears the burden of

showing a strong possibility of juror bias.” Poynter v. Ratcliff, 874 F.2d 219, 221 (4th Cir. 1989);

Wells v. Murray, 831 F.2d 468, 472 (4th Cir.1987).

Here, Petitioner maintains that the actions by the juror in question were enough to show

bias and require a voir dire of each member of the jury. Concerning the individual juror, it is

extremely rare that prejudice would arise because of intimidation in the courtroom. United States

v. Babb, 369 F. App’x 503, 511 (4th Cir. 2010). Further, “due process does not require a new

trial every time a juror has been placed in a potentially compromising situation. Were that the rule,

few trials would be constitutionally acceptable.” Smith v. Phillips, 455 U.S. 209, 217 (1982).

Both voir dire and protective instructions are available to trial judges as a means of safeguarding

juror impartiality, but they are not infallible. Id. Following the trial judge’s curative instruction,

the jury resumed their deliberations and returned a verdict. Even with the possibility of influence,

Petitioner fails to show that there was such a strong possibility of juror bias that the decision of the

trial judge should be overturned. Furthermore, in regard to the individual juror and the jury as a

whole, the trial judge did not abuse his discretion by not conducting voir dire of each juror. “Even

if improper influence is suggested, there is no requirement that the court conduct individualized

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voir dire each time.” Babb, 369 F. App’x at 511. “Individual questioning, which may tend to

unsettle the jury, is only warranted in cases where there is a strong indication of bias or

irregularity.” Id. (citing United States v. Stafford, 136 F.3d 1109, 1112-13 (7th Cir. 1998)). As

noted, Petitioner has failed to show that there was a strong indication of bias. Furthermore,

Petitioner failed to provide any evidence, or even an inkling of indication, that the entire jury had

become tainted. Therefore, the actions of the trial judge were within the discretion provided to

him under the case law.

Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication

of this claim did not result in a decision contrary to, or involve an unreasonable application of,

federal law, nor was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d). Accordingly, the Court DENIES Petitioner’s claim and

OVERRULES his objection regarding the actions of the trial judge.

IV. CONCLUSION

For the reasons set forth above, the Court ADOPTS the PF&R, (ECF No. 64),

OVERRULES the Objections, (ECF No. 68), GRANTS Respondent’s Motion for Summary

Judgment, (ECF No. 56), DENIES Petitioner’s Petition for a Writ of Habeas Corpus, (ECF No.

1), and DISMISSES this case from the docket of the Court.

The Court has also considered whether to grant a certificate of appealability. See 28

U.S.C. § 2253(c). A certificate will be granted only if there is “a substantial showing of the denial

of a constitutional right.” § 2253(c)(2). The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the constitutional claims by this Court is

debatable or wrong and that any dispositive procedural ruling is likewise debatable. See Miller–

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Ely. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 437, 484 (2000); Rose

y. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). Because Petitioner has not made a substantial

showing of the denial of a constitutional right in the § 2254 Petition and objections to the PF&R,

the Court DENIES a certificate of appealability. Pursuant to Rule 11(a) of the Rules Governing

Proceedings Under 28 U.S.C. § 2254, Petitioner may not appeal the Court’s denial of a certificate

of appealability, but he may seek a certificate from the court of appeals under Federal Rule of

Appellate Procedure 22.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: March 30, 2018

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