Jeffrey v. Ames

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

MARK LYNN JEFFREY,

Petitioner,

v. CIVIL ACTION NO. 1:17-03021

DONNIE AMES, Superintendent,

Mt. Olive Correctional Complex,

Respondent.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Dwayne L. Tinsley for submission of

findings and recommendation regarding disposition pursuant to 28

U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to

the court his Proposed Findings and Recommendation (“PF&R”) on

June 17, 2020, in which he recommended that the court deny

petitioner’s petition under 28 U.S.C. § 2254 and dismiss this

case from the court’s active docket. (See ECF No. 27.)

In accordance with the provisions of 28 U.S.C. § 636(b),

petitioner was allotted fourteen days and three mailing days in

which to file any objections to Magistrate Judge Tinsley’s

Findings and Recommendation. The failure of any party to file

such objections within the time allowed constitutes a waiver of

such party’s right to a de novo review by this court. Snyder v.

Ridenour, 889 F.2d 1363 (4th Cir. 1989).

On June 25, 2020, petitioner, acting pro se, filed a motion

seeking an extension of time to file objections to the PF&R.

(See ECF No. 29.) In his motion, petitioner stated that COVID-

19 precautions, including reduced operating hours for the law

library and reduced hours for those assisting him, were

hampering petitioner’s ability to properly research and present

his response to the PF&R. (See ECF No. 29.) On June 26, 2020,

the court granted petitioner’s motion and gave him until August

30, 2020, to file objections. (See ECF No. 31.) Petitioner

timely filed objections.

I. Factual Background

Magistrate Judge Tinsley’s PF&R provides the background to

this petition. To summarize, on November 3, 2011, a jury in

Mercer County found petitioner guilty of multiple counts of

sexual abuse, one count of sexual assault, and two counts of

purchasing a child. Attorney Robert Holroyd, who had been

practicing for 57 years at the time (see ECF No. 24, Ex. 2),

represented petitioner at trial. On January 23, 2012, the state

circuit court sentenced petitioner to an effective term of

imprisonment of 15-45 years.

Upon direct appeal, the Supreme Court of Appeals of West

Virginia (“the SCAWV”) affirmed petitioner’s conviction.

Petitioner then filed a habeas petition in the circuit court.

Once Paul R. Cassell became his attorney, he filed an amended

petition. The circuit court denied the habeas petition, and the

SCAWV affirmed. Petitioner then filed this petition under 28

U.S.C. § 2254. After petitioner’s unexhausted claims were

severed, his petition proceeded on two claims: (1) ineffective

assistance of counsel; and (2) cumulative error.

II. Standard of Review of Pro Se Objections

Pursuant to Fed. R. Civ. P. 72(b), the court must “make a

de novo determination upon the record . . . of any portion of

the magistrate judge's disposition to which specific written

objection has been made.” However, the court is not required to

review, de novo or under 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. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required and is unnecessary

“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, 47–48 (4th Cir. 1982); see also United States v.

Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for

appeal an issue in a magistrate judge's report, a party must

object to the finding or recommendation on that issue with

sufficient specificity so as reasonably to alert the district

court of the true ground for the objection.”); McPherson v.

Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure

to file a specific objection constitutes a waiver of the right

to de novo review.”).

“A document filed pro se is ‘to be liberally construed.’”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se

litigant’s objections broadly rather than narrowly.” Beck v.

Comm’r of Internal Revenue Serv., 1997 WL 625499, at *1-2

(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).

However, objections that are “unresponsive to the reasoning

contained in the PF&R” are irrelevant and must be overruled.

Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,

2009) (citing Orpiano, 687 F.2d at 47).

III. Petitioner’s Objections

Petitioner objects to the PF&R’s overall conclusion that

the state courts’ findings regarding his ineffective assistance

of counsel claim and cumulative error claim were neither

contrary to, nor an unreasonable application of, clearly

established federal law, nor based on an unreasonable

determination of the facts presented in the state court

proceeding. More specifically, petitioner objects to four of

the PR&R’s findings. First, he objects to the findings

regarding his argument that his counsel should have moved to

sever the charges against him. Second, he objects to the

findings regarding his argument that his counsel should have put

forth more effort to admit into evidence a purported custody

contract. Third, he objects to the findings regarding his

argument that his trial counsel should have put forth more

effort to try to exclude certain testimony as irrelevant or

unfairly prejudicial. Finally, petitioner objects to the

findings regarding his claim of cumulative error.

Petitioner’s objections are mainly to the overall

conclusions of the PF&R and repeat arguments he has already

made. Nevertheless, to the extent feasible, the court will

conduct a de novo review.

IV. Discussion

The standards established by the United States Supreme

Court in determining whether a defendant was denied his Sixth

Amendment right to effective assistance of counsel are set forth

in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

Strickland, a plaintiff must show (1) that counsel’s performance

was so deficient that it fell below an objective standard of

reasonableness, and (2) that counsel’s deficiency resulted in

prejudice so as to render the results of the trial unreliable.

Id. at 687-91. Counsel’s performance is entitled to a

presumption of reasonableness. Id. Thus, a habeas plaintiff

challenging his conviction on the grounds of ineffective

assistance must overcome a strong presumption that the

challenged actions constituted sound trial strategies. Id. at

689.

“Surmounting Strickland’s high bar is never an easy task.”

Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Padilla

v. Kentucky, 559 U.S. 356, 371 (2010)). “The question is

whether an attorney’s representation amounted to incompetence

under ‘prevailing professional norms,’ not whether it deviated

from best practices or most common custom.” Id. (quoting

Strickland, 466 U.S. at 690). The Fourth Circuit specifically

recognized that ineffective assistance of counsel may not be

established by a “Monday morning quarterbacking” review of

counsel’s choice of trial strategy. Stamper v. Muncie, 944 F.2d

170, 178 (4th Cir. 1991), cert. denied, 506 U.S. 1087 (1993).

On the prejudice prong of Strickland, “[t]he defendant must show

that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 466 U.S. at

694.

“Establishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more

difficult. The standards created by Strickland and § 2254(d)

are both ‘highly deferential,’ and when the two apply in tandem,

review is ‘doubly’ so. The Strickland standard is a general

one, so the range of reasonable applications is substantial.

Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under

§ 2254(d). 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.” Harrington, 562 U.S. at 105

(citations omitted).

a. Failure to Seek Severance of Charges

Petitioner speculates as follows:

By motioning for severance, the State would have tried the

Sexual Abuse charges first. If the accusations had failed,

certainly the Purchasing of Children charges would have

been dismissed due to lack of motive. Or, in the

alternative, Petitioner may have still been tried for

Purchasing of Children, but a 404(b) hearing would have

been held regarding the acquittal of the Sexual Abuse

charges.”

(ECF No. 32, at 3.)

Other than offering these speculations, petitioner does not

attempt to refute respondent’s argument that he was not entitled

to severance under West Virginia law because evidence of the

inappropriate touching would have been admissible anyway. See

Syl. Pt. 2, State v. Milburn, 511 S.E.2d 828 (W. Va. 1998).

While petitioner seems to assume that a motion to sever

would have been granted, the state courts’ rejection of

petitioner’s severance argument can be read to assume that the

motion to sever would have been denied. West Virginia law is

clear that “[a] defendant is not entitled to relief from

prejudicial joinder pursuant to Rule 14 . . . when evidence of

each of the crimes charged would be admissible in a separate

trial for the other.” State v. Gibbs, 238 W. Va. 646, 655, 797

S.E.2d 623, 632 (2017) (quoting Syl. Pt. 2, Milburn). But even

if petitioner was not entitled to severance, the trial court

still had discretion to order severance. See State ex rel.

Games-Neely v. Sanders, 565 S.E.2d 419, 423, 429 (W. Va. 2002)

(holding that although initial joinder was proper, trial court

had discretion to sua sponte reverse its earlier order denying

severance). The trial court here acknowledged its authority to

sever the charges in its discretion when it asked counsel

whether there had been a motion to sever. (ECF No. 24, Ex. 2.)

Even if the state courts’ analysis rested on the incorrect

assumption that severance would not have been permissible (as

opposed to required), however, that would not result in an

unreasonable application of Strickland. First, although a

motion to sever had a chance of being granted, it would not have

been a slam-dunk. The prosecution likely would have cited

multiple SCAWV opinions showing that severance was not required.

Second, even if the motion were granted, the evidence of

inappropriate touching still would have been admissible.

Petitioner’s speculations about how a motion to sever would have

changed things simply do not clear the high bar of showing a

reasonable probability of a different result “sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at

694.

There is certainly a reasonable argument that petitioner’s

trial counsel met the Strickland standard despite not moving to

sever the charges. More specifically, there is a reasonable

argument that because petitioner was not entitled to severance

and because the allegedly prejudicial evidence would likely be

admitted anyway, counsel’s representation did not fall below the

objective standard of reasonableness. There is also a

reasonable argument that, for the same reasons, petitioner has

not shown a reasonable probability that the result would have

been different had his trial counsel moved for severance.

Moreover, petitioner’s trial counsel articulated a strategy

reason for not moving to sever that was not objectively

unreasonable. During a hearing prior to trial, the trial court

questioned counsel as to whether anyone had moved to sever the

charges:

THE COURT: [N]obody ever moved for a severance in that,

between these two, between Counts 1 and 2 and the rest of

them?

MR.HOLROYD: Well, Judge, I think it’s crucial for this

jury to know the whole story.

(ECF No. 24, Ex. 2.) Counsel explained that petitioner’s theory

of the case was that the mother of the children whom he was

trying to “protect” was trying to retaliate against him. (See

id.) Advancing this theory involved showing that the mother

truly was trying to negotiate the sale of her children. (See

id.) Severance simply did not fit with petitioner’s plan of

telling the jury “the whole story.” (See id.)

Petitioner has failed to overcome “the presumption that,

under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland, 466 U.S. at 689

(1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

To the extent that petitioner may deny having received a

hearing under West Virginia Rule of Evidence 404(b), he is

wrong. At that hearing, Judge Derek C. Swope heard testimony

from A.P. and C.R., as well as from therapist Phyllis Hasty, who

treated them. (ECF No. 24, Ex. 2.) Notwithstanding that “from

a personal standpoint,” he had “a lot of concern about 404B

evidence” Judge Swope concluded that the acts had occurred and

ruled that the evidence of sexual abuse was admissible.1 (Id.)

Therefore, this objection is OVERRULED.

1 “Like I say . . . I didn’t start out with 404B. It’s a

creature that’s developed since I’ve been a lawyer, and I’m not—

you know, I always have worries about it. I’ll just be honest

with you, but I think it—you know, under the law, it’s

admissible, so I’m qoing to let it in and give the proper

instruction.” (Id.)

b. Failure to Authenticate and Admit Exhibit

Petitioner also argues that his trial counsel’s failure to

admit an exhibit consisting of a purported custody contract

between the victims of the attempted purchase and their mother

was a Strickland error, and that the state court’s determination

otherwise was contrary to, or an unreasonable application of,

federal law. He says that no reasonably qualified attorney

would “fail to exhaust” his trial counsel’s “numerous

opportunities to admit this evidence.” (ECF No. 32, at 5.)

Specifically, he argues that his counsel should have hired a

handwriting expert or called a lay witness familiar with

Sylvia’s handwriting. “Decisions about what types of evidence

to introduce ‘are ones of trial strategy, and attorneys have

great latitude on where they can focus the jury’s attention and

what sort of mitigating evidence they can choose not to

introduce.’” Wilson v. Greene, 155 F.3d 396, 404 (4th Cir.

1998) (quoting Pruett v. Thompson, 996 F.2d 1560, 1571 n.9 (4th

Cir. 1993)).

As the PF&R explains, petitioner’s trial counsel tried to

admit the purported contract, but he was unable to authenticate

Sylvia Jeffrey’s signature on it because she denied having

signed it and petitioner’s wife denied having seen Sylvia sign

it. As the PF&R further explains, although petitioner’s counsel

was unable to introduce the exhibit, he was still able to elicit

evidence of the alleged agreement that the exhibit purportedly

memorialized: one where Sylvia had agreed to grant custody of

the victims to petitioner and his wife.

Moreover, it is unclear how the admission of the purported

contract would have resulted in a reasonable probability of a

different result. It was not unreasonable for the state courts

to determine that there was no reasonable probability of a

different result had the exhibit been admitted. Having reviewed

the record, the state court’s finding of no Strickland error

resulting from the lack of admission of the exhibit was not

contrary to, or an unreasonable application of, federal law.

Therefore, this objection is OVERRULED.

c. Failure to Object to Allegedly Irrelevant or

Unfairly Prejudicial Evidence

Petitioner also objects to the PF&R’s ultimate finding as

to his claims of Strickland error based on his trial counsel’s

failure to object to various evidence, including (1) A.P.’s

testimony that she was abused in Tennessee; (2) Phyllis Hasty’s

testimony that A.P. told her about this abuse in the course of

therapy; and (3) Christopher Bell’s and Cpl. Long’s testimony

regarding their investigation of petitioner’s report to West

Virginia Child Protective Services. At the 404(b) hearing

concerning evidence of sexual abuse of A.P., the trial court

made very clear that it was letting in this evidence. Also,

although A.P. did not testify that she was abused in Tennessee,

her sister, C.R., did. (See ECF No. 24, Ex. 2.)

Because the court had admitted such evidence as to C.R.,

and as to abuse of A.P. in West Virginia, counsel’s failure to

object to evidence of abuse against A.P. in Tennessee almost

certainly would have been futile. The court had also already

ruled that Hasty’s testimony would come in under the exception

to hearsay for a treating therapist. See State v. Pettrey, 549

S.E.2d 323, 454, 460 (W. Va. 2001) (holding that testimony by

therapist Phyllis Hasty was admissible “under the medical

diagnosis or treatment exception to the hearsay rule”).

Concerning the testimony of Christopher Bell and Cpl. Long, this

evidence appears to have been relevant to refuting petitioner’s

defense that he was trying to save the victims from a bad

environment, and not substantially outweighed by a danger of

unfair prejudice. Petitioner’s counsel’s decision to refrain

from making objections that were very unlikely to be sustained

does not amount to deficient representation, and it was

certainly reasonable for the state courts to so find. Moreover,

as the PF&R points out, the trial court made sure to provide a

limiting instruction for any 404(b) evidence that was admitted.

Therefore, this objection is OVERRULED.

d. Cumulative Error

In his fourth and final objection, which is based on

cumulative error, petitioner makes the conclusory statement that

without the purported errors he alleges, the jury would not have

found him guilty. As he does not point to a specific problem

with the analysis set forth in the PF&R, his objection is not

entitled to de novo review. The court finds no error in the

PF&R’s analysis. As it correctly points out, for there to be

cumulative error, there must first be constitutional error, and

there was none here. See Fisher v. Angelone, 163 F.3d 835, 852

n.9 (4th Cir. 1998). Therefore, this objection is OVERRULED.

V. Conclusion

The court has reviewed the record, the Magistrate Judge’s

findings and recommendations, and petitioner’s objections. For

the foregoing reasons, petitioner’s objections are OVERRULED.

The court adopts the Findings and Recommendation of Magistrate

Judge Tinsley as follows:

1. Petitioner’s petition for writ of habeas corpus under

28 U.S.C. § 2254 is DENIED;

2. This action is DISMISSED; and

3. The Clerk is directed to remove this case from the

court’s active docket.

Additionally, the court has considered whether to grant a

certificate of appealability. See 28 U.S.C. § 2253(c). A

certificate will not be granted unless there is “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

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.

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,

683-84 (4th Cir. 2001). The court concludes that the governing

standard is not satisfied in this instance. Accordingly, the

court DENIES a certificate of appealability.

The Clerk is further directed to forward a copy of this

Memorandum Opinion and Order to counsel of record and

unrepresented parties.

IT IS SO ORDERED this 25th day of September, 2020.

ENTER:

Rautd A Dols

David A. Faber

Senior United States District Judge

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