# Brown v. Morrisey

> District Court, S.D. West Virginia · September 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10731901

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** September 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

NORMA BROWN,
Petitioner,
v. CIVIL ACTION NO. 5:19-cv-00196
PATRICK MORRISEY,
West Virginia Attorney General

Respondent.
MEMORANDUM OPINION AND ORDER
Pending is Respondents’ Motion to Dismiss and for Judgment on the Pleadings
[Doc. 67], filed November 20, 2023.
I.
Ms. Brown instituted this action on March 20, 2019, pursuant to 28 U.S.C. § 2254
for a Writ of Habeas Corpus. [Doc. 2]. The case was previously referred to the Honorable Omar J.
Aboulhosn, United States Magistrate Judge, for submission of proposed findings and a
recommendation (“PF&R”). After extensive case development, in both state and federal court, on
November 20, 2023, Respondent filed a Motion to Dismiss and for Judgment on the Pleadings.
[Doc. 67]. Ms. Brown, by counsel, filed her Response on December 20, 2023. [Doc. 69]. On
December 27, 2023, Respondent filed his Reply. [Doc. 70]. Magistrate Judge Aboulhosn filed his
PF&R on July 12, 2024. [Doc. 72]. Magistrate Judge Aboulhosn recommended the Court grant
Respondent’s Motion to Dismiss and Judgment on the Pleadings and remove this matter from the
docket. [Id.]. Objections were due on July 26, 2024. [Id.]. In accordance with Magistrate Judge
Aboulhosn’s PF&R, Ms. Brown timely filed her objections on July 26, 2024. [Doc. 73].
Respondent Patrick Morrisey did not file any objections, and instead filed a Response to the
Objections of the Petitioner on August 9, 2024. [Doc. 74].

II.
The Court need not 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. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” (emphasis
added)).

“Importantly, objections need not be novel to be sufficiently specific.”
Elijah v. Dunbar, 66 F.4th 454, 460 (4th Cir. 2023). “[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.”
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) “If the grounds for objection are clear,
district court judges must consider them de novo, or else run afoul of both § 636(b)(1) and Article
III.” Elijah, 66 F.4th at 460. Further, the Court need not conduct 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).

III.
Ms. Brown objects to the magistrate judge’s findings that (1) she failed to properly
exhaust her claims of ineffective assistance of counsel, and (2) West Virginia Code section 61-2-
13 is constitutional. First, she asserts “there are rare (if not unique) circumstances in this case that
prevented her from fully complying with the exhaustion requirements.” [Doc. 73 at 1]. She thus
urges the Court to “address the merits of” her “ineffective assistance of counsel claims and excuse
any failure to completely exhaust her state court remedies.” [Id. at 1-2]. Second, Ms. Brown
“maintains that [West Virginia Code section] 61-2-13 is fatally flawed because it does not require
a defendant act with any specific mens rea to be convicted of extortion.” [Id. at 7].

A. Failure to Exhaust Claims of Ineffective Assistance of Counsel
Magistrate Judge Aboulhosn concluded Ms. Brown failed to exhaust her claims of
ineffectiveness and instead, once again, presented the Court with a mixed petition of both
exhausted and unexhausted claims. [Doc. 72 at 33-47].
Pursuant to 28 U.S.C. § 2254, if a petition includes claims that are both exhausted
and unexhausted, the Court may (1) dismiss the petition in its entirety, (2) stay pending exhaustion
in state court, or (3) allow the petitioner to voluntarily dismiss the unexhausted claim(s) and
proceed with the exhausted claims. Rhines v. Weber, 544 U.S. 269, 275-77 (2005). Pursuant to 28
U.S.C. § 2254(c), “[a]n applicant shall not be deemed to have exhausted the remedies available in
the courts of the State, within the meaning of this section, if he has the right under the law of the
State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). To be
excused from the exhaustion requirement, Petitioner must establish “there is an absence of
available State corrective process” or “circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Our Court of Appeals has noted

that “the exhaustion requirement is satisfied so long as a claim has been ‘fairly presented’ to the
state courts.” Baker v. Corcoran, 220 F. 3d 276, 288 (4th Cir. 2000) (quoting Picard v. Connor,
404 U.S. 270, 275 (1971)).
On September 6, 2023, in the instant matter, Ms. Brown filed a Final Amended
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and Memorandum of Law in this Court
asserting two primary grounds. [Docs. 61, 62]. First, Ms. Brown presented Ground 1 alleging
“[t]he statute under which [she] was convicted, W. Va. Code § 61-2-13, is unconstitutional because
it does not require the State to prove that the defendant acted with any specific element of intent

to secure a conviction.” [Doc. 61 at 1]. Second, Ground 2 stated Ms. Brown received ineffective
assistance of counsel in three specific ways, [Id. at 1-2], namely, (A) trial counsel failed to
properly argue the issue of pastor/penitent privilege, (B) trial counsel failed to call an already-
obtained expert witness to examine the authenticity of a recording between Ms. Brown and Mr.
Griffin, and (C) appellate counsel failed to ensure the entire record was received from the Supreme
Court of Appeals of West Virginia. [Id.]. As Magistrate Judge Aboulhosn noted, and ultimately
Ms. Brown conceded, “[i]t is undisputed that Petitioner failed to fully exhaust her ineffective
assistance of counsel claims (Grounds 2(A), (B), and (C)) as asserted in her Final Amended
Petition.” [Doc. 72 at 43]. Magistrate Judge Aboulhosn found, “[t]here is no allegation or

indication that Petitioner should be excused from the exhaustion requirement because ‘there is an
absence of available State corrective process’ or ‘circumstances exist that render such process
ineffective to protect the rights of the applicant.’” [Id.].
Some have observed (1) state and federal habeas procedural requirements are
nuanced, (2) the requirements of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) are stringent, and (3) habeas matters can present an “unwary pro se” party with
challenges to have their petitions addressed. See generally Slack v. McDaniel, 529 U.S. 473, 487
(2000). As Magistrate Judge Aboulhosn acknowledged in his 57-page PF&R, however, Ms. Brown
is not an “unwary pro se prisoner,” as she has received multiple, unambiguous notices respecting
her obligation to exhaust prior to returning here. [Doc. 72]. Furthermore, as Respondent notes, Ms.
Brown’s reliance on the “‘complicated nature of appellate procedure in West Virginia’ is not a
sufficient reason to excuse Petitioner’s failure to exhaust.” [Doc. 74 at 4]. The Court agrees.
Simply put, Ms. Brown has been afforded ample opportunity to exhaust her
ineffective assistance of counsel claims. First, this case was previously stayed on December 31,

2019, when the Court adopted Magistrate Judge Aboulhosn’s PF&R, and Ms. Brown was
permitted to exhaust her state court remedies within thirty (30) days of the stay being entered.
[Docs. 27, 29]. Specifically, Magistrate Judge Aboulhosn observed “a writ of error coram nobis
was an available State remedy for Petitioner. Given the unusual nature of Petitioner’s procedural
history where she was released from custody prior to resolution of her State habeas petition,
Petitioner could establish extraordinary circumstances for the filing of a petition for writ of coram
nobis.” [Doc. 27 at 24]. The Court adopted Magistrate Judge Aboulhosn’s PF&R, the case was
stayed, and Ms. Brown was allowed to return to state court to exhaust her claims as required before
returning to federal court. [Doc. 29].

Relying on the assertion that Ms. Brown exhausted her state remedies, on January
27, 2020, the Court granted Ms. Brown’s Motion to Lift Stay. [Doc. 31]. Subsequently, Ms. Brown
filed a Second Amended Writ of Habeas Corpus. [Doc. 46]. Yet, as the Respondent argued in the
Motion to Dismiss Without Prejudice or for Stay Due to Petitioner’s Failure to Exhaust her State
Remedies filed on August 28, 2020, Ms. Brown’s petition was yet mixed, with some claims not
fully exhausted. [Docs. 48, 49]. On October 6, 2023, the Court agreed with Magistrate Judge
Aboulhosn that a second stay should be granted, allowing Ms. Brown to -- once again -- attempt
to fully exhaust her state claims. [Docs. 51, 52]. Magistrate Judge Aboulhosn noted a stay is “only
appropriate in limited circumstances.” [Doc. 51 at 36].
Ms. Brown’s objection avoids engaging with a significant obstacle to her present
contentions, namely that “[o]nce the petitioner is made aware of the exhaustion requirement, no
reason exists for h[er] not to exhaust all potential claims before returning to federal court.” Slack
v. McDaniel,529 U.S. 473, 489 (2000). Ms. Brown suggests having “appointed counsel in this
Court cannot substitute for having representation in state court by someone familiar with the

procedural quirks of that system.”1 [Doc. 73 at 5]. Yet, Ms. Brown has been “thoroughly informed
of the exhaustion requirement” and the Court has specifically “explained the exhaustion
requirement and stayed the above action so that [she] could return to State Court to fully exhaust
her State Court remedies via coram nobis proceedings.” [Doc. 72 at 44-45]. Ms. Brown cannot
meet her obligations under the exhaustion requirement because, despite being provided
opportunities to fully pursue a Writ of Error coram nobis in state court, she failed to appeal
Grounds 2(A) and (C) to the Supreme Court of Appeals of West Virginia following an adverse
ruling in the Circuit Court of Greenbrier County. [Id. at 44]. Further, Ground 2(B) was not there
raised. [Id.]. Her failure to raise Ground 2(B) in her coram nobis on January 8, 2021, is inexcusable

because, “[she] was clearly aware of all three claims of ineffective assistance of counsel as such
were initially asserted in her pro se Amended Section 2254 Petition filed on March 6, 2020.” [Doc.
72 at 44].
Give the explicit instructions of the Court to exhaust prior to returning here, she
does not present a unique circumstance warranting excusal of the exhaustion requirement.

1 The Court notes, but rejects, Respondent’s assertion that Ms. Brown “was not entirely
uncounseled below” because she was appointed counsel in this federal matter. [Doc. 74 at 3]. It is
inappropriate to suggest that counsel for Ms. Brown in the instant matter had some professional
obligation or duty to aid her in the state processes.
Accordingly, Ms. Brown failed to exhaust her state remedies regarding the entirety of Ground 2 in
her Final Amended Petition for A Writ of Habeas Corpus under 28 U.S.C. § 2254.
Accordingly, inasmuch as Magistrate Judge Aboulhosn correctly concluded Ms.
Brown did not properly exhaust Grounds 2(A), (B), and (C), and she has not presented a
meritorious reason for excusal of the exhaustion requirement, the Court OVERRULES Ms.

Brown’s objection.

B. Constitutionality of West Virginia Code Section 61-2-13
Ms. Brown next contends “W. Va. Code § 61-2-13 is unconstitutional because it
does not require the state to prove that the defendant acted with any specific element of intent.”
[Doc. 73 at 6]. Ms. Brown claims the Supreme Court of Appeals of West Virginia’s opinion
affirming her conviction “is fatally flawed, [sic] and amounts to an incorrect application of federal
constitutional law.” [Id.]. Ms. Brown believes “there is nothing in the plain language of § 61-2-
13(a) that suggests an improper intent is required for liability to attach.” [Id. at 7]. In sum, Ms.
Brown’s objection claims “[w]ithout a mens rea element the jury was left deciding [her] guilt
based on a scenario where she engaged in a regular, lawful demand (to transfer property) based on
a truthful allegation of criminal conduct.” [Doc. 73 at 8].
Ms. Brown’s objection is a recital of the contentions raised in her Final Amended
Petition. The PF&R exhaustively and appropriately considered the areas of argument warranting
discussion regarding the constitutionality of the statute. As noted in the PF&R, the Supreme Court

of Appeals of West Virginia’s opinion states as follows:
We have previously stressed the importance of our separation of powers
doctrine, and the great deference to which the legislature is entitled in the
interpretation and construction of a statute.
In considering the constitutionality of a legislative enactment, courts must
exercise due restraint, in recognition of the principle of the separation of powers in
government among the judicial, legislative and executive branches. Every
reasonable construction must be resorted to by the courts in order to sustain
constitutionality, and any reasonable doubt must be resolved in favor of the
constitutionality of the legislative enactment in question. Courts are not concerned
with questions relating to legislative policy. The general powers of the legislature,
within constitutional limits, are almost plenary. In considering the 52
constitutionality of an act of the legislature, the negation of legislative power must
appear beyond reasonable doubt. Syl. Pt. 1, State ex rel. Appalachian Power Co. v.
Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965). Further, “[w]here the language of
a statute is free from ambiguity, its plain meaning is to be accepted and applied
without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714,
172 S.E.2d 384 (1970). Based on the plain words of the statute and the applicable
case law governing the interpretation and construction of this statute, this Court
finds that the statute is not overbroad, as it requires that the threats are made for a
purpose: to “extort money, pecuniary benefit, or any bond, note or other evidence
of debt.” See W.Va. Code § 61-2-13. In addition, extortion is malum in se. See
generally Committee on Legal Ethics of the West Virginia State Bar v. Printz, 187
W. Va. 182, 416 S.Ed.2d 720 (1992).

[Doc. 45-1 at 3-4].
In both her objection and her Final Amended Petition, Ms. Brown primarily relies
on Rehaif v. United States, contending the Supreme Court “has repeatedly emphasized the
importance of criminal statutes containing mens rea or intent.” [Id. at 12]. Ms. Brown expresses
that “[i]n the words of Rehaif, there is nothing to separate wrongful behavior from ‘an innocent
mistake.’” [Doc. 62 at 13]. However, as Respondent asserts in response, Ms. Brown is merely
“express[ing] her disagreement with the WVSCA’s decision without showing how the decision is
contrary to Supreme Court precedent.” [Doc. 74 at 6]. Specifically, as both Respondent and
Magistrate Judge Aboulhosn assert, Rehaif “was a decision of statutory interpretation, not
constitutional law.” [Doc. 68 at 13]. Additionally, Respondent accurately notes “West Virginia
courts are not confined to its limited holding regarding firearms offenses and Rehaif is not
applicable here.” [Id.].
Magistrate Judge Aboulhosn rigorously traced Supreme Court precedent, including
Rehaif, and concluded “[a]lthough W. Va. Code § 61-2-13 is silent as to a mens rea element, the
Court can read mens rea such as knowledge or intent into the statute.” [Doc. 72 at 55].
Furthermore, “while the statute does not define ‘extort,’ the term’s plain meaning illuminates its
significance. As the Supreme Court of Appeals of West Virginia noted, it had previously held that

extortion is ‘malum in se.’” [Id.]. Thus, West Virginia Code section 61-2-13 “clearly criminalizes
the use of threats with the intent to ‘extort money, pecuniary benefit, or any bond, note or other
evidence of debt.’” [Id.]. Therefore, the Supreme Court of Appeals of West Virginia’s
determination is not contrary to, nor an unreasonable application of, clearly established federal
law, rendering Ms. Brown’s Ground 1 claim meritless.
Based upon the foregoing discussion and the contents of the PF&R, the Court
OVERRULES Ms. Brown’s objection.
IV.
For the reasons discussed herein, the Court ADOPTS the PF&R [Doc. 72],

GRANTS Respondent’s Motions to Dismiss and for Judgment on the Pleadings [Doc. 67], and
DISMISSES Ms. Brown’s Petition [Doc. 2].
Additionally, pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, “[t]he district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An inmate
satisfies this standard by demonstrating reasonable jurists would find that her constitutional claims
are debatable and that any dispositive procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). Here, Ms. Brown has not made the
requisite showing. Accordingly, the Court DENIES a certificate of appealability.
The Clerk is directed to transmit a copy of this written opinion and order to counsel
of record and any unrepresented party.
ENTER: September 26, 2024

Frank W. fy
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10731901. Public record. Not legal advice.