Mahood v. Ames

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

STEVEN LEE MAHOOD,

Petitioner,

v. CIVIL ACTION NO. 2:16-cv-01853

DONNIE AMES, Superintendent,

Mount Olive Correctional Complex,

Respondent.

MEMORANDUM OPINION AND ORDER

Pending before the court is Petitioner’s Petition for a Writ of Habeas Corpus

under 28 U.S.C. § 2254 [ECF No. 1]. By Standing Order, this matter is referred to

the Honorable Dwane L. Tinsley, United States Magistrate Judge for submission of

proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. §

636(b)(1)(B). For reasons appearing to the Court, it is hereby ORDERED that the

referral of this matter to the Magistrate Judge is WITHDRAWN and Petitioner’s

Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [ECF No. 1] is

DENIED.

1

On or about August 7, 2007, Petitioner’s wife, Ramona Mahood (“Ramona”),

died after suffering “multiple powerful blows to her head[,] face and torso as well as

1 The procedural history herein is derived from the opinions of the Supreme Court of Appeals of West

Virginia in Petitioner’s direct appeal and state habeas corpus matters, as well as the exhibits of record

previously submitted with Respondent’s Motion for Summary Judgment [ECF No. 18].

manual strangulation . . . there was also evidence of injury to her genitals and to the

area around her anus . . . .” , 708 S.E.2d 322, 325 (W. Va. 2010)

(“ ”). Petitioner denied killing Ramona, telling police that she arrived home

already injured. However, Petitioner’s statements to police were inconsistent with

those of other witnesses who saw Petitioner and Ramona together earlier that

evening. at 325. Petitioner was indicted on one count of murder and two counts

of possession of stolen vehicles. [ECF No. 18, Ex. 1]. In his trial and direct appellate

proceedings, Petitioner was represented by Lee F. Benford, II and Morgan B. Hayes.

A. Petitioner’s trial and direct appeal.

At trial, Petitioner attempted to establish a diminished capacity defense based

upon voluntary intoxication through the testimony of several witnesses who either

observed him drinking that evening or who were aware of his history of being

intoxicated. However, Petitioner did not testify at his trial, and the defense did not

present any expert testimony on the diminished capacity issue. Ultimately, the trial

court determined that the evidence was insufficient to warrant a diminished capacity

jury instruction. A summary of the relevant trial testimony, as well as the relevant

testimony provided at Petitioner’s omnibus hearing, is provided in the circuit court’s

Amended Judgment Order denying the petitioner’s first habeas corpus petition. [ECF

No. 18, Ex. 16 at 3-12].

Following a four-day jury trial, Petitioner was found guilty of first degree

murder without a recommendation for mercy. [ , Ex. 2]. On April 14, 2009,

Petitioner was sentenced to life without mercy. [ECF No. 18, Ex. 3]. He appealed his

2

judgment to the Supreme Court of Appeals of West Virginia (the “SCAWV”) raising

the following grounds for relief:

1. The trial court erred in refusing to give Defendant’s proposed

voluntary intoxication instruction.

2. The trial court erred in denying Defendant’s motion for mistrial

based on the State improperly introducing evidence of

Defendant’s bad character in the presence of the jury.

[ , Ex. 4]. The SCAWV granted the Petition for Appeal only on the second ground

for relief. [ ., Ex. 5]. Specifically, the SCAWV considered the following claim:

whether Petitioner was “denied a fair trial because the jury heard inadmissible

evidence about an adulterous affair he had with a State witness [Lisa Whitehouse].”

708 S.E.2d at 323. After additional briefing on this claim, the SCAWV affirmed the

judgment of the trial court on October 14, 2010. [ , Ex. 9]. Petitioner did not seek

a writ of certiorari in the Supreme Court of the United States.

B. Petitioner’s first state habeas corpus proceedings.

On or about January 1, 2010, Petitioner filed a pro se petition for a writ of

habeas corpus in the Circuit Court of Jackson County, raising the following grounds

for relief:

1. Denial of 6th Amendment Right and Article III Section 14 of the

WV Const. due to five allegedly unqualified jurors sitting on the

jury.

2. Denial of right to present a complete defense under the 6th and

14th amendments for the trial court’s alleged failure to give a

voluntary intoxication instruction.

3. Denial of effective assistance of counsel as guaranteed by the

West Virginia constitution and the “First, Fifth, Sixth, Eighth

3

and Fourteenth Amendments” to the United States Constitution

based on counsel’s failure to: (a) determine Petitioner’s blood-

alcohol level within hours of his arrest or to secure a forensic

toxicologist to inform the jury of cognitive and behavioral effects

of chronic alcohol dependency; (b) secure a jury free from

exception as required by West Virginia statutory and

constitutional law; and (c) secure an impartial and unbiased

jury.

[ECF No. 18, Ex. 11].

Attorney D. Adrian Hoosier, II (“Hooiser”) was then appointed to represent

Petitioner and he filed an Amended Petition raising the following grounds for relief:

1. Denial of fair trial under 6th and 14th amendments because of

prejudicial pretrial publicity.

2. Denial of right to a complete defense for the failure of the trial

court to give a voluntary intoxication instruction.

3. Ineffective assistance of trial counsel for failure to fully

investigate and prepare his defense.

4. Ineffective assistance of trial counsel for failure to present

mitigation evidence during the unitary trial.

5. Severe sentence and [sic] expected, excessive sentence,

mistaken advice of counsel as to parole or probation eligibility,

and the amount of time served on sentence/credit for time

served.

6. Prosecutorial misconduct in violation of due process and right to

a fair trial by introducing improper character evidence.

[ , Ex. 12]. Then, on or about February 12, 2013, Petitioner filed a Supplemental

Amended Petition, which incorporated the above-referenced claims and added the

following pro se supplemental claims of ineffective assistance of counsel and

cumulative error:

4

7. Ineffective assistance of trial counsel for failure to object and

move for a mistrial due to repeated questioning of witnesses by

the trial court concerning the petitioner’s location at the car

where hair evidence was found.

8. Ineffective assistance of trial counsel for failure to object to

testimony and prosecutor’s argument concerning evidence of

sexual assault.

9. Ineffective assistance of trial counsel for eliciting testimony of

State’s latent print expert that permitted the jury to draw

inference that the petitioner had a prior criminal record.

10. Ineffective assistance of trial counsel for failure to provide notice

of diminished capacity defense and to seek independent expert

concerning effects of alcohol and other drugs.

11. Ineffective assistance of trial counsel for failing to make

sufficient argument for mercy.

12. The petitioner contends that the cumulative effect of the errors

of ineffective assistance of counsel denied him a fair trial.

[ECF No. 18, Ex. 13 at 14-33]. Petitioner also filed a motion for default judgment

based upon the State’s failure to respond to the petition until after it had been

supplemented by Petitioner. [ ., Ex. 14]. An omnibus evidentiary hearing was held

on September 5, 2013. [ , Ex. 15]. On November 20, 2013, the circuit court denied

Petitioner’s Supplemental Amended Petition for Writ of Habeas Corpus. [ , Ex. 16].

Petitioner appealed the denial of his circuit court habeas corpus petition, but

only asserted two grounds for relief:

1. The Circuit Court of Jackson County, West Virginia, erred in

denying the Petition for Habeas Corpus relief despite evidence

establishing that a diminished capacity defense instruction was

warranted.

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2. The Circuit Court of Jackson County, West Virginia, erred in

failing to award [Petitioner] Habeas Corpus relief despite the

State’s failure to timely respond [to the petition].

[ECF No. 18, Ex. 19]. Petitioner later moved for leave to file a supplemental brief

raising additional grounds for relief, which was refused by the SCAWV. [ , Ex. 20].

On March 16, 2015, the SCAWV found no error on either ground for relief raised in

the petition for appeal and affirmed the judgment of the circuit court.

, No. 14-0026, 2015 WL 1244343 (W. Va. Mar. 16, 2015) (“ ”). [ECF

No. 18, Ex. 17]. As relevant here, the SCAWV affirmed the circuit court’s finding that

Petitioner’s claim of ineffective assistance of counsel for failing to properly investigate

and offer a diminished capacity instruction was meritless because there was no

evidence adduced at trial to suggest that he had a diminished capacity at the time

the crime was committed. at *8.

C. Petitioner’s section 2254 petition.

On February 26, 2016, Petitioner filed the instant Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254, which raises the following grounds for relief:

1. Petitioner was denied his constitutional right to a fair and

impartial jury trial and equal protection because five jurors were

statutorily disqualified from serving on the jury and there was

“extensive, negative, and prejudicial” pretrial publicity.

2. Petitioner was denied meaningful and effective assistance of

counsel as secured by the 1st, 5th, 6th, 8th, and 14th

Amendment. Specifically, the petitioner contends that his trial

counsel failed to:

(a) Properly pursue a diminished capacity defense,

including presenting the testimony of a forensic

toxicologist;

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(b) Secure a jury pool of prospective jurors free from

exception;

(c) Consider or seek a bifurcated trial;

(d) Object to prejudicial testimony that was unrelated

to an element of the crime alleged in the

indictment;

(e) Cross-examine Dr. Kaplan; and

(f) Present mitigation evidence and argument in a

unitary trial.

3. Petitioner was denied due process of law as secured by the

5th and 14th Amendments based on the trial court’s refusal to

instruct the jury that Petitioner’s voluntary ingestion of

alcohol might negate the specific intent necessary for a

conviction of first degree murder.

4. Petitioner’s right to due process of law as guaranteed by the

5th and 14th Amendments was violated by prosecutorial

misconduct when Dr. Kaplan (the State’s expert witness) was

permitted to testify to facts outside the information contained in

his autopsy report. Petitioner’s counsel was ineffective for

failing to object to this testimony.

5. Petitioner’s right to due process of law as secured by the 5th

and 14th Amendments was violated when the Circuit Court

denied his motion for acquittal at the conclusion of the State’s

case-in-chief because there was insufficient evidence to support a

conviction.

[ECF No. 1].

On September 13, 2018, the undersigned entered a Memorandum Opinion and

Order finding that all grounds in Petitioner’s § 2254 petition, except for Ground 2(a)

were not properly exhausted in the state courts. [ECF No. 30 at 7]. The Court further

found that the record then before this Court did not conclusively demonstrate that

7

Petitioner had knowingly and intelligently waived his unexhausted claims in the

state courts such that a state procedural bar would render the unexhausted claims

procedurally defaulted. [ at 9]. Thus, the Court denied Respondent’s Motion for

Summary Judgment and this civil action was stayed and held in abeyance to permit

Petitioner to attempt to exhaust any available state court remedies concerning his

unexhausted claims. [ at 10].

D. Petitioner’s second state habeas corpus proceedings.

On September 28, 2018, Petitioner, proceeding pro se, filed a second habeas

corpus petition in the Circuit Court of Jackson County (Case No. 18-C-83), raising his

unexhausted claims and further arguing that his habeas counsel was ineffective in

not adequately raising the claims of prejudicial pretrial publicity and diminished

mental capacity. , No. 19-0230, 2020 WL 2911622, at *1 (W. Va. June

3, 2020) (“ ”). By order entered on February 19, 2019, the circuit court

rejected Petitioner's argument that habeas counsel provided ineffective assistance in

his initial habeas proceedings, and further found that the doctrine of res judicata

precluded Petitioner from asserting “all matters [previously] raised and as to all

matters known or with reasonable diligence could have been known.”

Accordingly, the circuit court summarily dismissed Petitioner's second habeas

petition.

On June 3, 2020, the SCAWV affirmed the denial of Petitioner’s second state

habeas corpus petition, finding in pertinent part:

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Petitioner argues that the doctrine of res judicata does not apply to this

case by alleging that he was not advised of his obligation under 2 to

raise all applicable habeas grounds in the omnibus proceeding or have

them deemed waived. Petitioner points to the absence of a list in

. As we explained in , “[t]he checklist of grounds

typically used in habeas corpus proceedings, commonly known as ‘the

list,’ originates from [our decision in ]” 2015 WL 1244343, at

*1 n.2. We find that the absence of a list cannot be attributed to

the circuit court as, prior to the September 10, 2013, omnibus hearing

in , the court “granted petitioner an additional thirty days to

file a final petition and a ‘ list’” in April of 2013. at *1. Our

decision in further reflects that petitioner already knew to

raise all applicable claims in the omnibus proceeding because,

“[a]lthough still represented by counsel, petitioner, pro se, in February

of 2013, filed a document titled ‘supplemental claims to be added to

amended petition for writ of habeas corpus.’” Therefore, we find that

the circuit court did not err in finding that the doctrine of res judicata

applies to this case.

at *2. Petitioner argued, as an exception to the application of res judicata, that

his habeas counsel had provided ineffective assistance of counsel in addressing his

claims concerning pretrial publicity and a diminished capacity defense. However, the

appellate court found that those claims were previously raised by counsel and

adjudicated by the circuit court, and any other claims of ineffective assistance of

habeas counsel asserted on appeal were not raised in his second habeas petition in

the circuit court and, thus, would not be addressed on appeal. at *2 and n.2.

Therefore, the SCAWV affirmed the summary dismissal of Petitioner’s second state

habeas petition. at *3.

2 Referring to , 277 S.E.2d 606 (W. Va. 1981), in which the SCAWV held that an

omnibus hearing under W. Va. Code § 53-4A-1 is res judicata as to all matters raised therein, or those

claims which should have, with reasonable diligence, been known to the petitioner. The failure to

raise claims under those circumstances generally constitutes a knowing and intelligent waiver of such

claims and bars them from consideration in future proceedings.

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The stay herein has been lifted and the Court finds that this matter is

appropriate for resolution absent further briefing.

A. Standards for relief under 28 U.S.C. § 2254(d) and (e).

Title 28 U.S.C. § 2254(d), which was adopted as part of the Anti-terrorism and

Effective Death Penalty Act of 1996 (the “AEDPA”) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-

(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).

In , 529 U.S. 362, 412-13 (2000), the Supreme Court held

that under the “contrary to” clause, a federal court may grant a writ of habeas corpus

with respect to claims adjudicated on the merits in state court only if (1) the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law, or (2) if the state court decides a case differently from the Supreme

Court on a set of materially indistinguishable facts. The Court further held that

under the “unreasonable application” test, a federal court may grant a writ of habeas

corpus with respect to a claim adjudicated on the merits in state court only if the state

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court identifies the correct governing principle from the Supreme Court’s decision,

but unreasonably applies that principle to the facts of the prisoner’s case. . at 413.

Moreover, the AEDPA contains a presumption that a state court’s factual

findings are correct:

In a proceeding instituted by an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed

to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). Where a claim has been summarily refused, the Court must

simply determine whether that decision was legally and factually reasonable under

clearly-established federal law. , 236 F.3d 149, 158 (4th Cir. 2000)

(When a state court summarily rejects a claim without setting forth its reasoning, the

federal court reviews the record and the clearly-established Supreme Court law, but

still “confine[s] [its] review to whether the court’s determination ‘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.’”).

B. Exhaustion requirement under 28 U.S.C. § 2254(b).

Section 2254(b)(1)(A) of Title 28 of the United States Code, states that a

petition for a writ of habeas corpus filed in a federal district court by a prisoner in

state custody shall not be granted, unless it appears that the applicant has exhausted

the remedies available in the state courts, or if the state has waived the exhaustion

requirement. 28 U.S.C. §§ 2254(b)(1)(A), (b)(3). “State prisoners must give the state

courts one full opportunity to resolve any constitutional issues by invoking one

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complete round of the State’s established appellate review process.”

, 526 U.S. 838, 842 (1999); , 134 F.3d 615, 619 (4th

Cir. 1998) (Exhaustion requires the habeas petitioner to “fairly present the substance

of his claim to the state’s highest court.”)

In West Virginia, prisoners may exhaust their available state court remedies

either by stating cognizable federal constitutional claims in a direct appeal, or by

stating such claims in a petition for a writ of habeas corpus in a state circuit court

pursuant to West Virginia Code § 53-4A-1, followed by filing a petition for appeal

from an adverse ruling to the SCAWV. , 879 F. Supp. 592, 593 (S.D.W.

Va. 1995); , 631 F. Supp. 1544, 1545 (S.D.W. Va. 1986). A

petition for a writ of habeas corpus filed under the original jurisdiction of the SCAWV

that is denied with prejudice following a determination on the merits will also

exhaust the prisoner’s state court remedies. , 879 F. Supp. at 593;

, 631 F. Supp. at 1546; , 904 F.2d 903, 908-

909 (4th Cir. 1990) ( , 522 U.S. 87 (1997)).

Additionally, Petitioner must show that the claims he raised in state

proceedings are the same as the claims he now seeks to raise in his federal habeas

proceeding. , 421 U.S. 482, 487 (1975); , 404

U.S. 270, 275-76 (1971). The claims in both courts must “fairly present” the

“substance” of the claim, based upon the same factual grounds, and must allege that

the same federal constitutional right was violated. , 459 U.S. 4,

6 (1982).

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C. Procedural default doctrine.

The doctrine of procedural default bars litigation of claims in a federal habeas

corpus petition that were not fully adjudicated on their merits in state court where

such claims are barred from further litigation in state court by operation of a state

procedural rule. , No. 2:14-cv-25165, 2016 WL 1275054 *46

(S.D. W. Va. Mar. 31, 2016), , 670 F. App’x 193 (4th Cir., Nov. 18, 2016). “The

procedural default doctrine operates to bar a federal habeas claim ‘only if the rule of

procedure . . . is determined to be an adequate and independent state-law ground for

decision.’” at *47 (quoting , 192 F.3d 445, 450 (4th Cir. 1999);

, 565 U.S. 266, 280 (2012) (“As a rule, a state prisoner’s habeas

claims may not be entertained by a federal court when (1) a state court has declined

to address those claims because the prisoner had failed to meet a state procedural

requirement, and (2) the state judgment rests on independent and adequate state

procedural grounds.”).

However, “[t]he doctrine barring procedurally defaulted claims from being

heard is not without exceptions.” , 566 U.S. 1, 10 (2012);

, 593 F.3d 372, 377 (4th Cir. 2010) (“Although the doctrine of procedural default

limits federal habeas review of state convictions, it does not provide an absolute

bar.”). In fact, the procedural default doctrine provides for two exceptions where a

petitioner can show: (1) cause for the default and prejudice therefrom; or (2) that

failure to consider the claims will result in a fundamental miscarriage of justice.

13

, 501 U.S. 722, 750 (1991); , 375 F.3d

309, 323 (4th Cir. 2004).

“Cause for a procedural default exists where ‘something to the

petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his]

efforts to comply with the procedural rule. , 565 U.S. at 280. The

Supreme Court has not “identified with precision exactly what constitutes ‘cause’ to

excuse procedural default.” , 529 U.S. 446, 451 (2000).

Generally, ineffective assistance of habeas counsel is not considered an external

factor that would excuse the failure to exhaust a claim for habeas corpus relief.

, 565 U.S. at 280 (“Negligence on the part of a prisoner’s postconviction

attorney does not qualify as ‘cause.’”) (citing , 501 U.S. at 753);

, 566 U.S. at 9-10 (finding “cause” based upon counsel’s failure to raise

claims of ineffective assistance of trial counsel in initial habeas proceeding).

, summarized the procedural default doctrine as follows:

The procedural default doctrine applies to bar federal habeas when a

state court declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement.

, 501 U.S. 722, 729 (1991). In addition, “[i]f claims were not

exhausted in state court but would now be procedurally barred if

brought in state court, then federal courts can treat the claims as if they

were procedurally defaulted in the state courts.” ,

209 F.3d 370, 378 (4th Cir. 2000) (citing , 501 U.S. at 735 n.1).

“[T]he procedural bar that gives rise to exhaustion provides an

independent and adequate state-law ground for the conviction and

sentence, and thus prevents federal habeas corpus review of the

defaulted claim.” , 518 U.S. 152, 162 (1996)

(citations omitted). “The procedural default doctrine . . . appl[ies] . . .

whether the default in question occurred at trial, on appeal, or on state

14

collateral attack.” , 529 U.S. 446, 451 (2000)

(citations omitted).

2016 WL 1275054 at *46.

A. Determination of Procedural Default.

The Court previously determined that all grounds in Petitioner’s § 2254

petition, except for Ground 2(a) were not exhausted prior to the filing of Petitioner’s

second state habeas corpus petition. Now that Petitioner’s second state habeas

corpus proceedings have concluded, it is apparent from the state court record that

Grounds 1, 2(b)-2(f), 3, 4, and 5 are procedurally defaulted. Although, presently,

there is no dispositive motion pending, “a federal habeas court possesses the

authority to address, in its discretion, whether there exists an unexcused adequate

and independent state-law ground for a denial of relief from a challenged conviction

or sentence.” , 518 U.S. 152, 162 (1996) (stating

that procedural default “provides an independent and adequate state-law ground for

the conviction and sentence”). Thus, the Court, guided by the interests of comity and

judicial efficiency, may address the issue of procedural default .

, 166 F.3d 255, 262 (4th Cir. 1999); , 2016 WL 1275054, at

*40-41. Here, the issue of procedural default was previously raised and addressed in

the parties’ briefs concerning Respondent’s motion for summary judgment. Thus,

Petitioner was on notice of the procedural default issue earlier in the case and was

permitted to return to the state courts to attempt to remedy such default.

15

However, the SCAWV’s decision in demonstrates that the state

courts have now applied the doctrine of res judicata to prohibit a finding on the merits

of Petitioner’s defaulted claims. 2020 WL 2911622, at *2. The SCAWV further

emphasized that, even in the absence of a list, “[P]etitioner already knew to

raise all applicable claims in the omnibus proceeding” because, in February of 2013,

he filed a pro se document containing “supplemental claims to be added to petition

for writ of habeas corpus,” yet he failed to raise these unexhausted claims. At

any rate, the state courts now have made it clear that Petitioner is procedurally

barred from further pursuing those claims in the state courts. The Fourth Circuit

has stated that a “federal habeas court does not have license to question a state

court’s finding of procedural default or to question whether the state court properly

applied its own law.” , 593 F.3d 372, 377 (4th Cir. 2010). Thus, the

undersigned FINDS that Grounds 1, 2(b)-2(f), 3, 4, and 5 are procedurally defaulted.

However, the Court will further address whether Petitioner can establish cause and

prejudice to excuse such procedural default.

B. Exceptions to procedural default.

As noted above, “[t]he doctrine barring procedurally defaulted claims from

being heard is not without exceptions.” , 566 U.S. at 10; , 593 F.3d

at 377 (“Although the doctrine of procedural default limits federal habeas review of

state convictions, it does not provide an absolute bar.”). In fact, the procedural default

doctrine provides for two exceptions where a petitioner can show: (1) cause for the

default and prejudice therefrom; or (2) that failure to consider the claims will result

16

in a fundamental miscarriage of justice. , 501 U.S. 722,

750 (1991); , 375 F.3d 309, 323 (4th Cir. 2004).

“Cause for a procedural default exists where ‘something to the

petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his]

efforts to comply with the procedural rule. , 565 U.S. at 280. The

Supreme Court has not “identified with precision exactly what constitutes ‘cause’ to

excuse procedural default.” , 529 U.S. 446, 451 (2000).

Generally, however, ineffective assistance of habeas counsel is not considered an

external factor that would excuse the failure to exhaust a claim for habeas corpus

relief. , 565 U.S. at 280 (“Negligence on the part of a prisoner’s

postconviction attorney does not qualify as ‘cause.’”) (citing , 501 U.S. at 753);

, 566 U.S. at 9-10 (finding “cause” based upon counsel’s failure to

raise claims of ineffective assistance of trial counsel in initial habeas proceeding).

Here, the only apparent “cause” offered by Petitioner for the failure to exhaust his

claims is ineffective assistance by his habeas counsel in failing to exhaust his claims

in his initial habeas proceedings.

In , the Supreme Court established a “narrow” exception to

procedural default, holding: “Where, under state law, claims of ineffective assistance

of trial counsel must be raised in an initial-review collateral proceeding, a procedural

default will not bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17. This limited

17

exception does not extend to ineffective assistance of appellate counsel.

, 137 S. Ct. 2064, 2065 (2017).

Thus, a state prisoner may establish cause under by showing (1) that

the defaulted ineffective-assistance-of-trial-counsel claim is “substantial,” (2) that

counsel in the initial state collateral-review proceeding was ineffective or absent, and

(3) that state law required the ineffective-assistance-of-trial-counsel claim to be

raised in the initial collateral-review proceeding as opposed to on direct review.

, 569 U.S. 413, 423 (2013). A “substantial claim” is one that has

“some merit,” a standard that the Court likened to that governing the

issuance of a certificate of appealability under 28 U.S.C. § 2253(c)(2), which is if

“reasonable jurists could debate whether . . . the petition should have been resolved

in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” , 566 U.S. at 14 (citing

, 537 U.S. 322, 327 (2003)); , 967 F.3d 396, 422–23 (4th Cir.

2020).

As Grounds 1, 3, 4, and 5 of Petitioner’s § 2254 petition do not concern

ineffective assistance of trial counsel, the exception does not apply to those

claims and there is no other apparent cause to excuse the procedural default of those

claims. Additionally, the unexhausted ineffective assistance of trial counsel claims

contained in Ground 2 of Petitioner’s section 2254 petition cannot meet the

exception. The Court will address each of those claims in turn.

Ground 2(b)

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In Ground 2(b), Petitioner contends that his trial counsel failed to secure a jury

pool free from exception. [ECF No. 1 at 7]. He relies upon trial counsel’s failure to

object to the inclusion of five prospective jurors who were statutorily ineligible, under

state law, to serve because they had previously served on a jury within two years of

his trial. [Id.] Petitioner does not allege that any of these five prospective jurors were

somehow actually biased or that their service on his jury prejudiced the outcome of

the proceedings. Consequently, Petitioner has not satisfied the prejudice prong of

, 466 U.S. 688 (1984) and, thus, cannot demonstrate a Sixth

Amendment violation therefrom. Therefore, even if the exception is

implicated by the failure of habeas counsel to pursue and exhaust this claim, it is not

a substantial claim of ineffective assistance of trial counsel and will not excuse the

procedural default thereof. Additionally, there is no other valid exception to overcome

the procedural default of these claims.

Grounds 2(c) and 2(f)

In Ground 2(c), Petitioner alleges that his trial counsel failed to consider or

seek a bifurcated trial. [ECF No. 1 at 7]. In Ground 2(f), he contends that his trial

counsel was also ineffective because they failed to present mitigating evidence in the

unitary trial. [ at 9]. These claims were fairly addressed in Ground 4 of

Petitioner’s Supplemental Amended Petition filed in the circuit court, which rendered

substantive rulings thereon. [ECF No. 18, Ex. 13 at 8-10; Ex. 16 at 18-19]. However,

those claims were then abandoned in Petitioner’s habeas appeal. The

exception does not apply under those circumstances and there is no other valid

19

exception to overcome the procedural default of these claims.

Grounds 2(d) and 2(e)

In Ground 2(d) of his section 2254 petition, Petitioner contends that his trial

counsel failed to object to testimony offered by the Chief Medical Examiner, Dr.

James Kaplan (“Kaplan”), stating that it appeared that someone had inserted an

object into the victim’s rectum “in a forceful manner before she died.” [ECF No. 1 at

8]. Petitioner contends that this testimony was unduly prejudicial because it was

unrelated to an element of the crime of murder and was not supported by the evidence

of Kaplan’s autopsy report. [ ] In Ground 2(e) of the petition, Petitioner further

asserts that defense counsel was ineffective because they failed to cross-examine

Kaplan. [ ] These issues were addressed in Ground 8 of Petitioner’s Supplemental

Amended Petition filed in the circuit court and were specifically addressed and ruled

on by the circuit court in its final order. [ECF No. 18, Ex. 13 at 19-24; Ex. 16 at 16-

17]. However, these claims were then abandoned in Petitioner’s habeas appeal.

Thus, the exception is inapplicable, and there is no other valid exception to

excuse the procedural default of these claims of ineffective assistance of trial counsel.

For these reasons, the Court FINDS that Petitioner has not established cause

and prejudice to overcome the procedural default of Grounds 1, 2(b)-2(f), 3, 4, and 5

of his § 2254 petition. Accordingly, it is hereby ORDERED that those claims be

DISMISSED as procedurally barred.

20

B. Petitioner is not entitled to relief under § 2254 on Ground 2(a).

In Ground 2(a) of his § 2254 petition, which was fully exhausted in Petitioner’s

state proceedings, Petitioner contends that his trial counsel provided ineffective

assistance when they failed to properly establish a diminished capacity defense,

including failing to consult or employ a forensic toxicologist to establish a voluntary

intoxication defense and to obtain a diminished capacity jury instruction. [ECF No. 1

at 6-7]. In , 466 U.S. 688 (1984), the Supreme Court adopted a two-

prong test for determining whether a defendant received adequate assistance of

counsel. A defendant must show (1) that counsel’s representation fell below an

objective standard of reasonableness; and (2) that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. at 687- 91. Moreover, “judicial scrutiny of counsel’s performance

must be highly deferential.” at 689. Furthermore, the AEDPA “adds a layer of

respect for a state court’s application of the legal standard.” , 126

F.3d 876, 881 (7th Cir. 1997). There is a strong presumption that trial counsel’s

conduct was within the wide range of reasonable professional assistance, at 689,

and the burden is on the petitioner to show prejudice. , 724 F.2d

1425 (4th Cir. 1983). Further, “[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.” , 466 U.S. at 690. A

petitioner may not merely speculate about potential prejudice but must “affirmatively

21

prove” that the result of the proceedings would have been different but for the

deficient performance of trial counsel. at 693.

As previously argued by Respondent herein, a defendant seeking to pursue a

diminished capacity defense in West Virginia must introduce expert testimony

“regarding a mental disease or defect that rendered the defendant incapable, at the

time the crime was committed, of forming a mental state that is an element of the

crime charged.” Syl. Pt. 3, , 590 S.E.2d 718, 720 (W. Va. 2003).

Moreover, voluntary drunkenness “is generally never an excuse for a crime, but

where a defendant is charged with murder, and it appears that the defendant was

too drunk to be capable of deliberating and premeditating, in that instance

intoxication may reduce murder in the first degree to murder in the second degree,

as long as the specific intent did not antedate the intoxication.” Syl. Pt. 2,

, 272 S.E.2d 817, 818 (W. Va. 1980). [ECF No. 19 at 21-22].

Thus, “[i]ntoxication to reduce an unlawful homicide from murder in the first

degree, must be such as to render the accused incapable of forming an intent to kill,

or of acting with malice, premeditation or deliberation.” at Syl. Pt. 3, (quoting Syl.

Pt. 4, , 63 S.E.2d 69 (W. Va. 1950)). Accordingly, there must be

evidence, including expert testimony, that the defendant was incapable of forming

the requisite intent to present an affirmative defense of diminished capacity and,

absent such evidence, the trial court may not give an instruction on such a defense.

Syl. Pts. 2 and 3, ., 602 S.E.2d

506, 511 (W. Va. 2004).

22

Here, the SCAWV rejected Petitioner’s claim that his counsel was ineffective

in failing to pursue a diminished capacity defense and adopted and incorporated the

circuit court’s reasoning for denying habeas corpus relief. , 2015 WL

1244343, at *2-3. [ECF No. 18, Ex. 17]. The circuit court found that there was

“absolutely no evidence shown to the court at the Jury trial or at the Habeas hearing

that Petitioner Mahood was suffering from mental disease or defect sufficient to make

out a jury issue on ‘diminished capacity.’” [ECF No. 18, Ex. 16 at 14]. The circuit

court further opined:

As for trial counsel’s failure to obtain an expert, at the evidentiary

hearing it was undisputed that the defense did seek out an expert, but

that the expert in question was unable to provide a favorable report. Dr.

Miller and Mr. Benford both testified that they consulted following Dr.

Miller’s interview of the Petitioner, and it was mutually agreed that

calling Dr. Miller to testify would, if anything, be detrimental to the

Petitioner. In fact, Dr. Miller’s recollection of the interview was that the

Petitioner admitted to having a full recollection of murdering his wife,

and admitted that he was solely and completely responsible for her

death. The case law requires expert testimony before a diminished

capacity defense is available. However, trial counsel in this case could

not have called their expert to testify, unless they wanted to assure: (a)

that their client was convicted; and/or (b) that the trial court denied

their request for a diminished capacity defense.

[ .]

The circuit court’s opinion further found that Petitioner’s contention that he

was intoxicated to the point of not being responsible and suffered from “alcohol-

induced amnesia” was not credible because, during the omnibus hearing, he “vividly

described the argument that precipitated the murder” and his recollection of the

events that night was “crystal clear” up until the actual act of murder. [ at 15].

23

The SCAWV then found that “our review of the record supports the circuit court’s

decision to deny post-conviction habeas corpus relief on the error he assigns in this

appeal, which was argued below.” , 2015 WL 1244343, at *2. [ECF No. 18,

Ex. 20 at 3].

The record clearly demonstrates that defense counsel investigated the

intoxication issue and retained an expert witness to examine the viability of such a

defense. However, prior to trial, the expert, Dr. Miller, advised defense counsel that

he could not render an opinion that Petitioner was so intoxicated that he could not

formulate the specific intent to kill his wife deliberately and premeditatedly. Thus,

despite trial counsel’s attempt to develop evidence of Petitioner’s intoxication on the

night of the murder and his history of intoxication, without such expert testimony

and other sufficient evidence to support such a defense, the trial court properly

refused to instruct the jury on voluntary intoxication and diminished capacity.

The record herein clearly demonstrates that Petitioner has not established

that his trial counsel’s conduct surrounding the attempted development and

presentation of a diminished capacity defense fell below an objective standard of

reasonableness. Nor can Petitioner demonstrate the requisite prejudice to support a

violation of his Sixth Amendment right to the effective assistance of counsel in

accordance with . Accordingly, the Court FINDS that the state courts’

decisions denying Petitioner habeas corpus relief on this basis were neither contrary

to, nor an unreasonable application of, clearly established federal law, and were not

24

based on an unreasonable determination of the facts presented in the state court

proceedings. Thus, Ground 2(a) of Petitioner’s § 2254 petition is DENIED.

IV. CONCLUSION

For the reasons stated herein, it is hereby ORDERED that Petitioner’s Petition

for a Writ of Habeas Corpus [ECF No. 1] is DENIED and this civil action is

DISMISSED. 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.” Jd. § 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—El v. Cockrell,

537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 487, 484 (2000); Rose v.

Lee, 252 F.3d 676, 683-83 (4th Cir. 2001). The Court finds that the standard is not

satisfied herein and, thus, 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.

The Court DIRECTS the Clerk to remove this action from the Court's docket

and to send a copy of this Order to counsel of record and any unrepresented party.

ENTER; March 28, 2024

Z

Loe STATES DISTRICT JUDGE