# Herto v. Murphy

> District Court, N.D. West Virginia · August 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10765290

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** August 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNTED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling

STEPHEN D. HERTO,

Petitioner,

v. Civil Action No. 5:17-CV-54
Judge Bailey

JOHN T. MURPHY, Acting Warden,

Respondent,

REPORT AND RECOMMENDATION

I. INTRODUCTION

On May 1, 2017, the pro se petitioner, Stephen D. Herto (“petitioner”) filed a
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.
[Doc. 1]. Now pending before this Court are Respondent’s Motion for Judgment on the
Pleadings [Doc. 109]1, filed June 7, 2024, and Petitioner’s Motion for Summary
Judgments (sic) [Doc. 117], filed July 2, 2024. Petitioner is challenging his 2013
conviction in the Circuit Court of Preston County, West Virginia. The matter is now
pending before the undersigned for a review and Report and Recommendation pursuant
to 28 U.S.C. § 636 and Local Rule of Prisoner Litigation Procedure (“LR PL P”) 2. For
the reasons that follow, the undersigned recommends the petition be denied and
dismissed.

1 The Court notes that in an apparent typo, the Motion is titled “Respondent’s for
Judgment on the Pleadings.” As the intended title is obvious and referenced in both
parties’ briefing, the undersigned will refer to it as such throughout this Report.
II. FACTUAL AND PROCEDURAL HISTORY

A. Petitioner’s Conviction and Sentence in Preston County Circuit Court Case
Number 13-F-65

As summarized by the West Virginia Supreme Court of Appeals:
In November of 2013, petitioner was indicted on thirteen counts: two
counts of sexual abuse by a parent, custodian, or person in a position of
trust; one count of use of obscene matter with intent to seduce a minor; and
ten counts of soliciting a minor via computer. In July of 2010, the victim,
then sixteen years old, started treatment at petitioner’s chiropractic clinic.
The scheduled treatments were conducted three times per week, for three
months. During one of those visits, the victim’s grandmother and petitioner
began discussing the subject of horses. To further communicate on the
subject of horses, the victim gave petitioner her e-mail address. In October
of 2010, the victim started receiving several e-mails from petitioner per
month in an attempt to solicit the victim into engaging in sexual acts.
Petitioner also requested nude pictures of the victim via e-mail and he
attempted to lure the victim out of her home to meet him.

State of West Virginia v. Stephen H., No. 15-0801, (June 6, 2016 W.Va) (unpublished),
[Doc. 39-8 at 2–3]. Following trial, petitioner was found guilty of Count 1, sexual abuse
by a parent, custodian or person in a position of trust; not guilty on Count Four, the second
count for sexual abuse by a parent, custodian or person in a position of trust; guilty of
Counts 2–3, 5–9, and 11–13, the ten counts of soliciting a minor via computer; and guilty
of Count 10, use of obscene matter with intent to seduce a minor. [Doc. 39-4 at 43].
Petitioner’s sentences were summarized by the West Virginia Supreme Court of Appeals:
Following the verdict, the circuit court sentenced petitioner to the following
sentences: not less than two nor more than ten years of incarceration for
counts two, three, five, six, and seven of the indictment for soliciting a minor
via a computer, to run concurrently; not less than two nor more than ten
years of incarceration for counts eight, nine, eleven, twelve, and thirteen, to
run concurrently to each other, but consecutively to counts two, three, five,
six, and seven; three years of incarceration for one count of use of obscene
matter with intent to seduce a minor, to run concurrently with counts two,
three, five, six, and seven for soliciting a minor via computer; and not less
than ten nor more than twenty years of incarceration for two counts of
sexual abuse by a parent, custodian, or person in a position of trust, to run
consecutively to all the other sentences. However, the circuit court
suspended petitioner’s sentence for sexual abuse by a parent, guardian or
person in a position of trust and placed him on probation for a period of five
years. Petitioner was also ordered to serve a ten year period of extended
supervised release upon the expiration of all other sentences of
imprisonment or parole.

State of West Virginia v. Stephen H., No. 15-0801, (June 6, 2016 W.Va) (unpublished),
[Doc. 39-8 at 3]. The undersigned notes, however, that petitioner filed a motion for
reduction of sentence and that, after petitioner’s appeal was concluded, the circuit court
“reduced time for incarceration to two to ten years.” [Doc. 11-5 at 4].
B. Direct Appeal – Case Number 15-0801
Petitioner appealed his conviction and sentence pro se to the West Virginia
Supreme Court of Appeals. [Id.]. Notably, the WVSCA erroneously stated that petitioner
“was found guilty on all thirteen counts” despite the not guilty verdict on Count 4.2 [Id. at
3]. Petitioner raised four assignments of error: ineffective assistance of counsel, alleging
numerous grounds; unclear jury instructions, arguing the jury was not instructed that it
must be shown the victim was under his “care;” failure of the court to suppress evidence;
and failure to dismiss the case based on insufficient evidence of “care.” [Doc. 11-2 at 13–
15]. On appeal, the WVSCA did not rule on the ineffective assistance claim, citing that it
was “extremely rare” for the court to find ineffectiveness on direct appeal and that the
record should be more fully developed through habeas corpus proceedings. [Doc. 39-8
at 3]. On the issue of the denial of acquittal, the WVSCA found that “It is clear from the
record that the evidence before the jury was more than sufficient for it to find him guilty
on all charges.” [Doc. 39-8 at 5]. Likewise, as to the insufficient evidence claim, the court

2 The WVSCA’s error was apparently made in reliance on erroneous briefing made by a
prosecuting attorney, who was later admonished for this error. [Doc. 49-1].
found no error. [Id. at 5–6]. Finally, regarding the issue of jury instructions, the court
found that the instructions, “reviewed as a whole,” were sufficient. [Id. at 7].
C. State Habeas Proceeding
As previously summarized, in Judge Bailey’s April 4, 2024 Order:
On October 5, 2016, petitioner filed a petition for habeas corpus in the
Circuit Court of Preston County, West Virginia. [Doc. 93 at 2]. While his
State habeas corpus petition was pending, petitioner was released on
parole. [Id.]. As a result, the Circuit Court of Preston County dismissed the
petitioner’s state habeas corpus petition without adjudication because the
Circuit Court of Preston County no longer had the authority to adjudicate
the State habeas petition. [Id]. The petitioner filed an appeal with the
WVSCA, which the affirmed the Circuit Court’s decision.

[Doc. 96 at 2].
D. Federal Habeas Proceeding and Excusal of Exhaustion
On May 1, 2017, petitioner filed a petition in this Court pursuant to 28 U.S.C.
§ 2254. [Doc. 1]. Along with his petition, petitioner filed a Motion to Stay, [Doc. 2],
seeking to stay this case in order for him to fully exhaust state remedies. On May 16,
2017, petitioner then filed a Notice of Change of Address which indicated that he had
been released from incarceration. [Doc. 9]. On November 17, 2019, Judge Stamp issued
a Memorandum Opinion and Order which found that although the WVSCA had dismissed
petitioner’s appeal of his habeas proceeding due to petitioner’s release, some of
petitioner’s claims were still not exhausted because he had the available remedy of
pursuing a writ of coram nobis, and the petition was thus a “mixed” petition of exhausted
and unexhausted claims. [Doc. 52]. The Order directed petitioner to notify the Court
whether he wished to pursue a writ of coram nobis or voluntarily withdraw his
unexhausted claims. [Id. at 9]. Following an interlocutory appeal, on April 23, 2020,
petitioner filed a Notice of Coram Nobis Filing, [Doc. 70], and began providing the court
status updates of his coram nobis proceedings.
Nearly four years later, on January 26, 2024, petitioner filed a Motion for Exception
to Exhaustion, arguing that exhaustion should be excused due to the inordinate delay in
the state proceedings. [Doc. 93]. This Court found that exhaustion should be excused

and granted the Motion. [Doc. 96].
E. Amended § 2254 Petition
In his amended petition, petitioner raises five grounds for relief. First, in Ground
One, petitioner alleges that his trial counsel was ineffective. Petitioner includes a number
of alleged failures by counsel. First, that counsel failed to present any jury instruction and
failed to object to the trial court’s instructions, which did not include petitioner’s theory of
the case on the solicitation charges. Second, that counsel “failed to use overwhelming
evidence that the victim was not in the defendant’s ‘care.’” [Doc. 106-1 at 2]. Third, that
counsel was unaware of the sexual exploitation charge charged in Count One. Fourth,

that counsel failed to move for acquittal. Fifth, that defense counsel did not file any post-
trial motions. Sixth, that counsel did not object to Count One being included in the jury
instructions despite believing it was not charged in the indictment. Seventh, that defense
counsel failed to object to “surrogate testimony” which denied petitioner the right to
confront the witness. Eighth, that defense counsel “suppressed the best evidence” that
petitioner was not at a hotel at the time of an email sent charged in Count Ten. Ninth,
that defense counsel failed to prepare for a pre-trial suppression hearing and “missed
critical evidence.” [Id.]. Finally, that defense counsel’s cumulative errors prejudiced
petitioner.
Second, in Ground Two, petitioner argues that he was denied jury instructions
which included his theory of the case. He argues the jury instructions were required to
include the elements of “person in position of trust” and “care, custody or control” and that
without these he admitted to every other element of the charge.
Third, in Ground Three, petitioner argues he was convicted on insufficient

evidence. Petitioner cites a number of matters which he contends were not supported by
any evidence, including that there was no evidence of an “attempt,” that there was no
evidence of the element of “care, custody, or control,” that there was no evidence of
sexual exploitation, and that there was no evidence he was physically present with the
victim.
Fourth, in Ground Four, petitioner argues he was denied the opportunity to confront
the witnesses against him because the lead investigator testified as a “surrogate” from
reports and investigations performed by other officers.
Finally, in Ground Five, petitioner claims he was convicted of Count One despite

such count not being charged in the indictment.
F. The Instant Motions
On June 7, 2024, respondent filed Respondent’s Motion for Judgment on the
Pleadings, along with a memorandum in support. [Doc. 109 & 110]. In his memorandum
in support, respondent argues that, as to the exhausted claims, the WVSCA decision on
direct appeal is not contrary to or an unreasonable application of federal law; that
petitioner has not stated a cognizable claim on his “confrontation clause” claim; that
sexual exploitation was included in the charge for Counts 1 and 4 of the Indictment; and
that petitioner has not met his burden regarding his ineffective assistance of counsel
claims. On July 2, 2024, petitioner filed a response to the Motion, [Doc. 116], and on July
16, 2024, respondent filed a reply, [Doc. 118].
On July 2, 2024, petitioner also filed Petitioner’s Motion for Summary Judgment.
[Doc. 117]. Petitioner argues that he should be granted summary judgment for Grounds
3-1 and 5 of his petition, which both attack Count 1 of his indictment. [Doc. 117 at 1–2].

Specifically, he argues that emails alone are insufficient to constitute an attempt and that
the trial court has already found that the indictment did not charge petitioner with sexual
exploitation. On July 23, 2024, respondent filed a response. [Doc. 119]. Any reply by
petitioner was due within fourteen days; to date, no reply has been filed. See LR PL P
11.
III. LEGAL STANDARDS

A. Petitions for Habeas Corpus Under 28 U.S.C. § 2254
Under 28 U.S.C. § 2254, a district court must entertain a petition for habeas corpus
relief from a prisoner in State custody, but “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).
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)(1) and (2); see also Williams v. Taylor, 529 U.S. 362 (2000).
A petitioner can only seek § 2254 relief if he has exhausted the remedies available
in state court, the corrective process is not available in state court, or the state process is
ineffective to protect the petitioner. 28 U.S.C. § 2254(b).
B. Motions for Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure

12(c) seeks to dispose of a case on the basis of the underlying substantive merits of the
parties’ claims as they are revealed in the formal pleadings. See 5C Wright & Miller,
Federal Practice and Procedure Civil 3d § 1367 (2007). “In analyzing a party’s motion for
judgment on the pleadings pursuant to Federal Rule 12(c), the Fourth Circuit has
indicated that the applicable standard is the same as a motion to dismiss pursuant to
Federal Rule 12(b)(6), noting that the ‘distinction is one without a difference.’” Hurley v.
Wayne Cty. Bd. of Educ., 2017 WL 2454325, at *3 (S.D. W.Va. June 6, 2017)
(Chambers, C.J.) (quoting Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d
401, 405–06 (4th Cir. 2002)).

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim,
a plaintiff’s well-pleaded allegations are taken as true and the complaint is viewed in the
light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993); see also Martin, 980 F.2d at 952.
The Federal Rules of Civil Procedure “require only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In Twombly, the United States Supreme Court noted that a complaint need not assert

“detailed factual allegations,” but must contain more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Conley, 550 U.S. at 555
(citations omitted). Thus, the “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Id. (citations omitted), to one that is “plausible on its face,”
[Id. at 570], rather than merely “conceivable.” Id. Therefore, in order for a complaint to
survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to
state all the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324
F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002); Iodice v. United States, 289 F.3d 279, 281 (4th Cir. 2002)). In so doing, the

complaint must meet a “plausibility” standard, instituted by the Supreme Court in
Ashcroft v. Iqbal, where it held that a “claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Thus, a well-pleaded complaint must offer more than “a sheer possibility that a
defendant has acted unlawfully” in order to meet the plausibility standard and survive
dismissal for failure to state a claim. Id.
C. Motions for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue exists “if the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
the Court must conduct “the threshold inquiry of determining whether there is the need
for a trial – whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Anderson, 477 U.S. at 250.
Additionally, the party opposing summary judgment “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the
movant has met its burden to show absence of material fact, the party opposing summary
judgment must then come forward with affidavits or other evidence demonstrating there
is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323–
25; Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations
omitted).
Finally, this Court notes that pro se allegations are held to a less stringent standard
than those drafted by lawyers and must be liberally construed. Haines v. Kerner, 404
U.S. 519, 520 (1972); Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978).
IV. ANALYSIS

The privilege of the writ of habeas corpus is recognized in Article I, Section 9 the
United States Constitution. Petitions for writs of habeas corpus filed in the federal courts
are governed by 28 U.S.C. § 2241 et seq. Pursuant to 28 U.S.C. § 2254(b)(1):
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 unless it
appears that—

(A) the applicant has exhausted the remedies available in the courts of
the State; or

(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.

In Baldwin v. Reese, 541 U.S. 27, 29 (2004), the Supreme Court held that to, “provide
the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in
each appropriate state court . . . thereby alerting that court to the federal nature of the
claim.” Accordingly, a petition for writ of habeas corpus on behalf of a prisoner in State
custody should not be entertained by a federal court unless the petitioner has first
exhausted his state remedies. Principles of comity dictate that the state must first be
afforded a full and fair opportunity to pass upon and correct the alleged violation of its
prisoners’ federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Woodfolk v.
Maynard, 857 F.3d 531 (4th Cir. 2017).
Here, the Court has excused exhaustion on petitioner’s unexhausted claims due
to the inordinate delay in petitioner’s Coram Nobis proceedings. [Doc. 96]. For the claims
exhausted by direct appeal, Ground 2, petitioner’s claim regarding jury instructions, and
Ground 3, petitioner’s claim that he was convicted on insufficient evidence, the Court must
still address those claims by determining whether the adjudication of those claims in state
court “was contrary to, or involved an unreasonable application of clearly established
Federal law.” The undersigned agrees with the parties that the remaining claims are

subject to de novo review. See Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015)
(“the state court’s decision must qualify as an ‘adjudicat[ion] on the merits’ to trigger
AEDPA deference.”) (quoting § 2254(d)); Weeks v. Angelone, 176 F.3d 249, 258 (4th
Cir. 1999), aff’d, 528 U.S. 225 (2000) (“When a petitioner has properly presented a claim
to the state court but the state court has not adjudicated the claim on the merits, however,
our review of questions of law and mixed questions of law and fact is de novo.”).
A. The WVSCA’s determination that the jury instructions, reviewed as a whole,
were sufficient, is not contrary to or an unreasonable application of federal
law.3

As this Court has previously noted, the petitioner has exhausted his claims
regarding jury instructions by virtue of his direct appeal. [Doc. 52 at 7]. Petitioner argues,
in Ground Two, that the trial court violated his rights by neglecting to include his theory of
the case in the jury instructions. He contends that “[t]he jury instruction must include the
elements of ‘person in a position of trust’ and ‘care, custody or control’ to distinguish the
petitioner’s theory of the case and why he went to trial.” [Doc. 106 at 9]. The trial court
provided instruction on the element of “a person in a position of trust” in its instruction

3 Because of the overlap between some of alleged grounds and petitioner’s bases for
alleged ineffective assistance of counsel, the undersigned will address the arguments in
the order presented in the Motion for Judgment on the Pleadings, rather than the
Amended petition.
relating to Counts One and Four. [Doc. 39-4 at 6–7]. However, petitioner argues the trial
court failed to include this instruction for his theory of the case as to Counts Two, Three,
Five through Nine, and Eleven through Thirteen, i.e., the charges for soliciting a minor via
computer. [Doc. 106 at 8–9]. Instructing the jury on these charges, the trial court stated:
Soliciting a minor via computer is committed when any person over the age
of 18 knowingly uses a computer to solicit, entice, seduce, or lure or attempt
to solicit, entice, seduce, or lure a minor known or believed to be at least
four years younger than the person using the computer or a person he or
she believed to be such a minor to commit any illegal act prescribed by
certain provisions by the West Virginia Code, including the act of sexual
abuse by a parent, guardian, custodian or person in a position of trust to a
child as previously defined in this charge.

[Doc. 39-4 at 9] (emphasis added). Thus, the trial court did not separately redefine
“person in a position of trust” or “care, custody, or control” and instead referred back to
its earlier definition. Because the trial court defined the elements of sexual abuse by a
parent, custodian, or person in a position of trust, and because the jury instructions stated
that the soliciting charges required the intent to commit sexual abuse by a parent,
custodian, or person in a position of trust, the West Virginia Supreme Court of Appeals
found that the jury instructions were sufficient when “reviewed as a whole. State of West
Virginia v. Stephen H., No. 15-0801, (June 6, 2016 W.Va) (unpublished), [Doc. 39-8 at
7], (citing State v. Guthrie, 194 W.Va. 657, 671 (1995)).
The undersigned concludes that this decision was not contrary to, or involving an
unreasonable application of, clearly established Federal law. As pointed out by
respondent, the “only question” in a federal habeas review of the state court’s jury
instructions, is “whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Further, “[i]t is well established
that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the
context of the instructions as a whole and the trial record.” Id. at 62 (citing Cupp 414 U.S.
at 147)). Clearly, taking the instructions as a whole, the trial court instructed the jury that
for the solicitation charges, it must find that the defendant was attempting solicit a minor
to commit an illegal act “prescribed by certain provisions of the West Virginia Code,

including the illegal act of sexual abuse by a parent, guardian custodian or person in a
position of trust to a child as previously defined in this charge.” [Doc. 39-4 at 9]. The trial
court had already defined the elements of that crime and the undersigned finds that the
failure to re-define the same element here did not “so infect[] the entire trial that the
resulting conviction violates due process.”
In his response to the Motion for Judgment on the Pleadings, petitioner contends
that his argument has been misstated on this point:
The altered argument adopted word for word by the WVSCA completely
ignores the defendant’s actual theory of the defense argument. The
defendant never asked for more definitions. The WVSCA has never
addressed the defendant’s actual argument. The WVSCA cited State v.
Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), specifically “the court was
not required to give a further instruction of the same element as they relate
to a different charge.”[Doc. 39-8 at 7] But, the Petitioner did not request a
duplicative instruction. [Doc. 110 at 15] The defendant’s position by
counsel was that the elements themselves be included in the solicitation
charges to the jury, in agreement with the defense’s theory of the case. The
additional elements of “person in a position of trust” and “care, custody or
control” must be included in the solicitation charge because they are not
part of the solicitation statute.

[Doc. 116 at 10–11]. Petitioner’s argument is that the jury was in fact required to find he
was a “person in a position of trust” at the time of the solicitation. [Id. at 11]. As set forth
above, the instructions on the solicitation charges included that the jury must find that the
defendant “use[d] a computer to solicit, entice, seduce or lure or attempt to solicit, entice,
seduce, or lure” the victim “to commit the illegal act of sexual abuse by a parent, guardian,
custodian, or person in a position of trust to a child in violation of West Virginia Code 61-
8d-5.” [Doc. 39-4 at 9]. The elements required were clearly set forth in the jury instruction,
and petitioner’s attempt to insert an additional element is unsupported. A solicitation
necessarily occurs at a different time than the crime being solicited.

The West Virginia Supreme Court of Appeals’ decision on this issue is not contrary
to or involving an unreasonable application of clearly established federal law, and this
ground should be dismissed.
B. Petitioner cannot demonstrate he was convicted on insufficient evidence,
and to the extent the WVSCA has ruled on this issue, its findings are not
“objectively unreasonable.”

In Ground Three, petitioner claims he was convicted on insufficient evidence.
Petitioner asserts that sending electronic communications, alone, cannot be considered
an “attempt” and, therefore, there was no evidence of an “attempt” as to Count 1.
[Doc. 106 at 11]. Further, he asserts that there was no evidence presented on the
element of “care, custody, or control” as to Counts 1, 5-9, and 11-13. [Doc. 106-1 at 3].
He further asserts that there was no evidence of sexual exploitation for Count 1. [Id.].
Finally, he asserts that there was no evidence “of the defendant and victim being
physically present with one another” as to Count 1. [Id.]. He argues that “[a]ny rational
observer can easily ascertain that for sexual abuse to even be attempted, it is implied that
the parties must at least be physically in the same location, not different states, as in this
case.” [Id.].
In challenging the sufficiency of the evidence to support his conviction, petitioner
faces “two layers of judicial deference:”
First, on direct appeal, “it is the responsibility of the jury—not the court—to
decide what conclusions should be drawn from evidence admitted at trial.
A reviewing court may set aside the jury’s verdict on the ground of
insufficient evidence only if no rational trier of fact could have agreed with
the jury.” Cavazos v. Smith, 565 U.S. 1, ––––, 132 S.Ct. 2, 4, 181 L.Ed.2d
311 (2011) (per curiam). And second, on habeas review, “a federal court
may not overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with the
state court. The federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559
U.S. 766, ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651 (2012).
Although the West Virginia Supreme Court of Appeals rejected petitioner’s
arguments, petitioner contends that the ruling is unreliable as it relied on misinformation,
mistakenly believing that petitioner had been convicted on Count 4. [Doc. 116 at 12].
Turning first to petitioner’s argument that emails alone are insufficient and that he must
have been physically present with the victim, the WVSCA rejected petitioner’s argument
“that the statute requires that he and the victim share the same physical space to sustain
such a conviction [under § 61-8D-5].” [Doc. 39-8 at 8].
Contrary to petitioner’s argument, there is no requirement in the statute that
the victim be physically harmed. Petitioner misconstrues our ruling in State
v. George K., 233 W.Va. 698, 760 S.E. 2d 512 (2014), to support his notion
that physical harm to the victim is a component of the offense of sexual
abuse by a parent, guardian, custodian, or person of trust. Moreover, the
evidence established that petitioner sexually abused the victim in person,
rendering his argument meritless.

[Doc. 39-8 at 8] (emphasis added). Thus, although the Supreme Court mistakenly
believed petitioner had been convicted of Count 4, it is clear their ruling was that this was
superfluous. The undersigned does not agree that the above ruling was “based on the
fabricated guilt of Count 4.” [Doc. 116 at 12]. Nothing in the text of § 61-8D-5 leads the
undersigned to find that physical presence is a requirement of the statute, and the
undersigned finds that the Supreme Court’s decision is not “objectively unreasonable.”
Next, petitioner contends that there is nothing in the record showing the element
of “care, custody or control.” [Doc. 106-1 at 3]. He contends that although the indictment
charged Count 1 as relating to the period between October 5, 2010, and April 5, 2011,

nothing in the record shows the victim was in petitioner’s care after October 12, 2010.
[Id.]. Likewise, he contends that Counts 5–9 and 11–13 all occurred after October 12,
2010, and that there was no evidence of “care, custody, or control” during that time. [Id.].
Unlike the other “insufficient evidence” arguments, the parties agree that this specific
argument was not ruled upon by the WVSCA. In the memorandum in support of the
Motion for Judgment on the Pleadings, respondent argues that petitioner’s relationship to
the victim was solely that of a chiropractor to his child patient. [Doc. 110 at 20].
Respondent argues that his professional duties as a chiropractor included “continuing
obligations to patients, such as maintaining patient records. The relationship did not

dissolve because her next appointment had not yet been scheduled.” [Id].
In response, petitioner argues that because the victim testified that she would not
return to the petitioner for an appointment after being groped, that she was therefore no
longer in the “care” of petitioner. [Doc. 116 at 15]. He further points out that because the
victim’s mother testified that petitioner “released” the victim at the end of the October 12,
2010 appointment, that this served as a formal end to his “care” of the victim. [Id.].
Although the undersigned agrees with the parties that the WVSCA decision did not
reach this issue and this Court must review the claim de novo, the Court must still defer
to the factual findings of the jury unless no rational trier of fact could have agreed with the
jury. At trial, both the victim and Lieutenant Swiger’s testimonies included testimony
showing that the victim was petitioner’s patient, and it is undisputed that a doctor-patient
relationship existed for some of the time period in question. However, petitioner argues
that any such relationship which would establish the basis for “care, custody or control”
ended on the date of the victim’s last appointment with petitioner. During the trial,

petitioner’s testimony included that he sent email from his office email during the period
after the October 12, 2010 appointment. [Doc. 39-3 at 89–90]. Cross examination
continued:
Q. Do you have an understanding about your legal and ethical
responsibilities as a doctor for your patients?

A. Sure.

Q. And you think that ends the minute they walk out your door every
time for a treatment?

A. You asked me if I was caring for her while she was outside the office.
I can’t care for her there.

Q. Actually the question I asked you was do you have a doctor/patient
relationship. I haven’t gotten to the caring part yet. Were you in that
relationship as a doctor and patient during this overall time period or is it
your testimony that the relationship only lasts for the limited amount of time
she is in your office?

A. You mean from July to October when she was a patient? I mean,
yes, she’s a patient of my office. If she called me up and said, hey, can you
help me with such and such, I would, I mean, yes, sir. I wouldn’t say she
wasn’t a patient of mine while she was a patient of mine. If you’re asking if
she was a patient of mine after she was released from care? I don’t think
so.

. . .

Q. So this exhibit, Defendant’s Exhibit Five from October 13th, you
acknowledge that this doesn’t say anything about releasing her or otherwise
terminating your relationship with her. Doesn’t say anything about that.
A. Not, it does not.

[Doc. 39-3 at 90–92]. A reasonable juror could have concluded that, as the respondent
argues, the professional relationship did not dissolve simply because the victim had not
scheduled another appointment.
Finally, petitioner asserts that there is no evidence in the record of sexual
exploitation; specifically, he contends that the only evidence for guilt was “an alleged
request for a nude picture.” [Doc. 106-1 at 3]. He further points to his contention that the
trial court later concluded that sexual exploitation was not charged in Count 1 of the
indictment. [Id]. To the extent petitioner contends there was a deficiency in the language
of the indictment, this claim has no bearing on the sufficiency of the evidence, and the
undersigned has addressed petitioner’s argument concerning the indictment in Ground
Five below. In his response to the Motion for Judgment on the Pleadings, petitioner
emphasizes that he never requested a “nude” picture and that he simply asked for a
picture. [Doc. 116 at 13–14]. The record reflects that the State’s Exhibit 4 includes a set

of emails in which on October 5, 2010, petitioner asked “are u naked [victim]?” to which
the victim replied “oh yeah? ha. who is this?” to which petitioner replied, “send me a pic,”
sent approximately seven minutes after the initial question. [Doc. 39-3 at 103]. The jury
could have concluded that this was a request for a nude picture, and the undersigned
does not find that “no rational trier of fact could have agreed.”
C. Petitioner cannot demonstrate any violation of the confrontation clause.
In Ground Four, petitioner argues he was denied the right to confront the witness
regarding Count 10 because the lead investigator testified as to reports and investigations
performed by other officers. [Doc. 106-1 at 4]. The Sixth Amendment provides that “[i]In
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. “The Confrontation Clause commands
that reliability be assessed in a particular manner: by testing in the crucible of cross-
examination.” Crawford v. Washington, 541 U.S. 36, 37 (2004).
Here, petitioner contends his Sixth Amendment right was violated when Sergeant

Swiger’s testimony included testimony about investigations conducted by another officer,
Sergeant McCord, as well as by a computer forensic analyst. See [Doc. 116 at 18–19;
Doc. 94-3 at 40–45]. Specifically, Sergeant Swiger testified that:
A. Yes, I have nothing to say that his computer sent that. I know that
email was sent from AC_Rich account that Dr. Herto has admitted to
sending - - - and I know this email, we haven’t talked about this, but I traced
this email back to the Mardi Gras Casino in Cross Lanes, West Virginia. I
know the email was sent from there on a specific date in January 13th, 2011.
Through my investigation I was able to confirm that Dr. Herto was a
guest at the hotel on the dates that these emails were sent. Can I say
he sent them? I can’t absolutely say that.

[Doc. 39-3 at 61] (emphasis added). Thus, petitioner contends Swiger’s testimony
violated the confrontation clause because there was no testimony from the officers who
conducted the investigation Swiger referred to. Respondent argues that “Lt. Swiger
merely testified that he confirmed through his investigation that Petitioner was a hotel
guest on certain dates. Lt. Swiger was the lead investigator of this matter and would have
reviewed multiple documents and reports as part of his investigation. His testimony does
not violate the confrontation clause as he stated that he confirmed information provided
by others as part of his own investigation.” [Doc. 118 at 7]. The undersigned agrees.
In petitioner’s Memorandum in Support of Application for Writ of Coram Nobis,
petitioner also refers to a signed report titled “Supplemental Action Taken.” [Doc. 94-3 at
43]. Petitioner argues that this report was testimonial in nature and thus violated the
confrontation clause. Petitioner cites to Bullcoming v. New Mexico, 564 U.S. 647, 664
(2011), for the proposition that “A document created solely for an ‘evidentiary purpose,’
Melendez–Diaz clarified, made in aid of a police investigation, ranks as testimonial. 557
U.S., at 311, 129 S.Ct., at 2532.”, see [Doc. 94-3 at 44]. The report in question, which
can be found at [Doc. 116-6], is a report or portion of a report outlining the police

investigation in this case that occurred at Mardi Gras Casino & Resort in Cross Lanes,
West Virginia. But the Court need not determine whether this report is “testimonial”
because it was not introduced as evidence. Petitioner has not directed the Court to any
testimony or evidence which violated the confrontation clause and this ground should be
dismissed.
D. The undersigned finds no constitutional error from any deficiency in Count
1 of the Indictment.

In Ground Five, petitioner claims he was charged and convicted of a crime not in
the indictment. Specifically, he alleges that the jury instructions for Count One included
a charge for sexual exploitation despite not being included in the indictment. [Doc. 106-
1 at 1]. He states that this was not discovered until the trial court issued an order revealing
that the conviction proceeded to the jury despite not being included in the indictment.
The Indictment lists “Count 1” as “Sexual abuse by a Parent, Guardian, Custodian,
or Person In a Position of Trust,” under W.Va. Code § 61-8D-5, and alleges that petitioner
committed the felony crime of “Sexual Abuse by a Person in a Position of Trust.” [Doc. 39-
1 at 2]. The indictment specifically alleges that petitioner “engaged in or attempted to
engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual
contact with” a child under his care. [Id.] (emphasis added).
The jury instructions relating to this Count show that the judge instructed the jury
that
Sexual abuse by a parent, guardian, custodian, or person in a position of
trust to a child is committed when any parent, guardian, custodian, or other
person in position of trust in relation to a child under his or her care, custody,
or control shall engage in or attempt to engage in sexual exploitation of or
in sexual intercourse or intrusion or sexual contact with a child under his
care, custody or control, notwithstanding the fact that the child may have
willingly participated in such conduct or the fact that the child may have
consented to such conduct or the fact that the child may have suffered no
apparent physical injury or mental or emotional injury as a result of such
contact.

[Doc. 39-4 at 6]. As a part of the instructions on these counts, the judge further provided
a definition of “sexual exploitation.” [Id. at 7]. Thus, it appears that the indictment included
the same charge described in the jury instructions, and that the indictment included
“sexual exploitation.”
However, petitioner contends that “The presiding trial judge has found post-trial
after reviewing the indictment during the State Habeas Corpus petition that ‘In fact, Count
1 of the Indictment did not charge Petitioner Herto with sexual exploitation.’ [Doc. 11-5 at
15] Here the senior status judge with well over 30 years on the bench made a conclusive
ruling.” [Doc.116 at 19]. A review of the cited order shows that the court found the
following:
Sexual exploitation, as well as sexual intercourse and sexual contact, were
all defined in the Judge’s Charge to the Jury. (See id. at 12-13) The jury
did not necessarily have to find that Petitioner Herto attempted to engage
in sexual exploitation with the victim; instead, it could have found that
Petitioner Herto attempted to engage in sexual intercourse or sexual contact
with the victim. In fact, Count 1 of the Indictment did not charge Petitioner
Herto with sexual exploitation. It specifically stated that Herto “used a
computer to send multiple e-mails to [the victim], a 16 year old child who
was his patient, soliciting her to engage in sexual intercourse and sexual
contact with him and provide him with a naked picture of her . . . .”
(Indictment, Count 1, Case No. 13-F-65 (emphasis added).)
Accordingly, because Petitioner’s assertions have been fully and finally
adjudicated by the Supreme Court of Appeals of West Virginia on his direct
appeal, and because Petitioner misinterprets the necessary elements to
convict him of sexual abuse by a person in a position of trust as charged in
Count 1 of the Indictment in his underlying criminal case, the Court finds
and concludes that the assertion contained in Ground Three, Paragraph 18
of the Amended Petition for Writ of Habeas Corpus should be summarily
dismissed.

[Doc. 11-5 at 16]. Read in context, the habeas court found that petitioner’s argument that
“there is no evidence of sexual exploitation in Count 1,” [Id. at 15], was a misinterpretation
of the evidence needed to sustain a conviction, pointing out that the indictment described
soliciting to engage in sexual intercourse and sexual contact. The undersigned does not
believe that a reasonable reading of the April 11, 2017 Order is that the court determined
the indictment was deficient.4
Regardless, because this claim was not fully exhausted, and exhaustion was
excused by this Court, the claim is subject to de novo review. As set forth above, the
indictment unambiguously alleges in Count 1 that petitioner “unlawfully and feloniously
engaged in or attempted to engage in sexual exploitation of, or in sexual intercourse,
sexual intrusion or sexual contact with” a child under his care. [Doc. 39-1 at 2].
Petitioner’s argument is without merit and should be dismissed. In the alternative, if the
district court determines that petitioner is correct that the April 11, 2017 Order constitutes
“a determination of a factual issue made by a State court” that sexual exploitation was not
charged in the indictment, the undersigned finds that the respondent has met the burden

4 The undersigned notes however, that the trial transcript does include that at the time of
closing arguments it appears the court may have believed that “sexual exploitation” was
mistakenly included in the jury instructions. [Doc. 39-4 at 35].
of rebutting the presumption of correctness “by clear and convincing evidence” as such a
factual determination is clearly at odds with the plain text of the indictment.
E. Ineffective Assistance of Counsel
In Ground One, petitioner argues that his trial counsel was ineffective, providing,
as set forth above, ten alleged failures which he argues constitute ineffective assistance

of counsel. Criminal defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish that
counsel’s assistance was not reasonably effective, a defendant must satisfy a two-prong
analysis: first, he must show both that counsel’s performance fell below an objective
standard of reasonableness and, second, that he was prejudiced by counsel’s alleged
deficient performance. Id. at 669.
When considering the performance prong of Strickland, courts apply a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689; see also Gray v. Branker, 529 F.3d 220, 228–29 (4th Cir. 2008).

This first prong requires the petitioner to “‘show that counsel’s representation fell below
an objective standard of reasonableness’ measured by ‘prevailing professional norms.’”
Lewis v. Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting Strickland, 466 U.S. at
688). The court must judge counsel “on the facts of the particular case,” and assess
counsel’s performance “from counsel’s perspective at the time.” Strickland, 466 U.S. at
689. There is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” and “[j]udicial scrutiny of counsel’s performance
must be highly deferential.” Strickland, 466 U.S. at 689. When making an ineffective
assistance of counsel determination, a court must consider “the practical limitations and
tactical decisions that counsel faced.” Bunch v. Thompson, 949 F.2d 1354, 1363 (4th
Cir.1991).
To satisfy the prejudice prong of Strickland, a defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional error, the outcome of the
proceeding would have been different. Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. This second prong
requires the petitioner to show that counsel’s errors were serious enough to deprive the
petitioner of a fair trial. Strickland, 466 U.S. at 687. If it is clear the petitioner has failed
to satisfy either prong of the Strickland standard, a court need not inquire into whether
he satisfied the other.
This ground has not been fully exhausted through state remedies, and the parties
agree that it is subject to de novo review. [Doc. 110 at 27; 116 at 22].
1. The jury instructions were proper and defense counsel was not ineffective
for failing to introduce alternate instructions.

First, petitioner argues his counsel was ineffective for failing to present any jury
instructions or to object to the jury instructions for the solicitation charges. [Doc. 106-1 at
2 ¶ 1]. Petitioner points the Court to his earlier Memorandum in Support of Application
for Writ of Coram Nobis [Doc. 94-3] for his proposed instructions. [Doc. 116 at 22]. There,
petitioner contends that his counsel should have ensured that the instructions pertaining
to the solicitation charges included the element of “care, custody, or control.” [Doc. 94-3
at 11]. This is simply a re-framing of his argument raised in Ground Two and fails for the
same reason. Petitioner’s theory is that the victim was no longer in his “care, custody, or
control” at the time of these charges, that he was therefore not a “person in a position of
trust” and that the jury instructions should have included these points in the solicitation
charges because they were soliciting a crime which included those elements. As set forth
above the West Virginia Supreme Court of Appeals found that the jury instructions were
sufficient when “reviewed as a whole,” and the undersigned finds that the decision was
not contrary to or involving an unreasonable application of clearly established federal law.
The undersigned sees no reason to distinguish this issue when approached as an

ineffective assistance claim—petitioner is unable to show either prong of Strickland.
Because the West Virginia Supreme Court of Appeals found the jury instructions were
sufficient, petitioner is unable to show that his counsel was ineffective for failing to provide
alternative instructions, nor can he show prejudice because he cannot show either that
the trial court would have accepted defense counsel’s proposed instructions or that such
instructions would have had any impact on the outcome of the case.
2. Petitioner cannot show defense counsel’s performance was deficient in
presenting evidence related to “care, custody, or control.”

Next, petitioner argues his counsel was ineffective by failing to use “overwhelming
evidence” that the victim was not in defendant’s care. [Doc. 106-1 at 2 ¶ 2]. He alleges
that defense counsel told him he did not hear the victim say, “I found someone else” and
that counsel should have argued this point in his closing argument. [Id.]. Defense
counsel’s closing argument raised the issue that the jury must find “care, custody or
control” and argued that “person in a position of trust” means “at the time, as does ‘care,
custody or control,’ that any act of sexual misconduct or attempt to do so is occurring.”
[Doc. 39-4 at 25]. Although focused around the language of “person in a position of trust,”
in addressing the solicitation counts, defense counsel continued to argue that this
relationship no longer existed at the time of the conduct:
The State would ask you to accept the proposition that he continues
to be a person in a position of trust to [victim] after the 13th of October. Why?
Because she gets some mass emailing that’s part of a, who knows, a
business PR program, a mass Christmas card. This is the only time in this
presentation I’ll use the word we’ve reached a level of absurdity here with
this case.
We’re not a person in a position of trust by any interpretation
whatsoever after the 13th. He is clearly not guilty of this crime beyond that
date. These Counts require a different analysis. At the least, she is his
patient, she visits his chiropractic office a number of times, and she is still
seeing him off and on during the time period that these Counts occur.

[Doc. 39-4 at 30–31]. Although with the benefit of hindsight, defense counsel might have
focused more on the alleged end of the doctor-patient relationship or more emphasized
the victim’s statement that she had “found somebody else,” the undersigned finds that
petitioner has not shown that counsel’s arguments fell outside the “wide range of
reasonable professional assistance.” Further, given that the “overwhelming evidence”
petitioner points to was part of the testimony the jury heard, the undersigned finds that
petitioner cannot demonstrate he was prejudiced by the lack of emphasis in defense
counsel’s closing argument.
3. Petitioner is able to meet the performance prong but cannot meet the
prejudice prong of Strickland as to defense counsel’s handling of Count 1
and the inclusion of “sexual exploitation.”

Next, petitioner argues that his counsel was ineffective because he was not aware
petitioner was being charged with sexual exploitation and failed to present a defense for
the sexual exploitation charge in Count 1. [Doc. 106-1 at 2 ¶ 3]. In a later claim, petitioner
argues that sexual exploitation was not charged in the indictment. [Id. at 1]. As set forth
below, the indictment unambiguously includes sexual exploitation as part of the charge in
Count 1. Despite this, it appears that in his closing argument, defense counsel believed
Count 1 did not relate to sexual exploitation:
What he’s accused of in this count, Count One, is he is accused of
using a computer to send multiple emails to [the victim], 16-year-old child
who was his patient, soliciting her to engage in sexual intercourse and
sexual contact with him and provide him a naked picture of her. So he is
accused of sending a number of emails between those dates.
And although the statute says “To engage or attempt to engage in
sexual exploitation, intercourse, or contact, the actual indictment reads that
he is attempting to engage in sexual intercourse or sexual contact by
sending these emails.

[Doc. 39-4 at 24]. Likewise, during the prosecutions closing argument, defense counsel
raised an objection related to sexual exploitation:
THE COURT: This objection, was it caused by something he just said
to the jury?

MR. DYER: He’s trying to explain to them that he can be guilty of
sexual exploitation, but that’s not the indictment and it’s not what’s been
prosecuted in this case.

MR. SNYDER: Yes, it is.

THE COURT: I’m gonna let it go. I’m not going to make a statement
that this has been waived which I’m sure is why you wanted to come to the
bench. The reason now - - -

MR. DYER: I would never do that.

THE COURT: I know, and I’m not sure exactly how this plays out, but
I would tend to caution Mr. Snyder to be careful.

MR. DYER: I’m just going through the charge and what it says.

THE COURT: We’ve reached this point and we can’t change the jury
charge, we can’t change anything, so we’ve got to go on.

[Doc. 39-4 at 35]. Thus, it appears that defense counsel believed Count One pertained
only to attempting to engage in sexual intercourse or sexual contact.
Petitioner argues that defense counsel thus presented “no defense” to this count
and that the Court should presume that the adversary process was unreliable, citing
Untied States v. Cronic, 466 U.S. 648, 659 (1984). In Cronic, the Supreme Court noted
that there are some “circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.” Id. at 658. Such
circumstances can justify a presumption of ineffectiveness without inquiry into counsel’s
actual performance at trial. Id. at 661–2. “This is an extremely high showing for a criminal
defendant to make and, in Cronic itself, the Court held that although trial counsel in

Cronic’s mail fraud prosecution was given only 25 days to prepare for trial, counsel was
inexperienced in criminal matters, the charges against Cronic were complex, and that
some witnesses were not easily accessible, this set of events did not constitute a Sixth
Amendment violation absent a showing of actual ineffectiveness.” Brown v. French, 147
F.3d 307, 313 (4th Cir. 1998). For example, the presumption of prejudice is appropriate
when “defendant’s counsel is asleep during a substantial portion of the defendant’s trial.”
United States v. Ragin, 820 F.3d 609, 619 (4th Cir. 2016).
Here, defense counsel appears to have misunderstood the scope of the charge in
Count 1 of the indictment. The undersigned finds that this falls below the objective

standard of reasonableness and meets the performance prong of Strickland. However,
this is far short of the “extremely high showing” necessary to apply Cronic’s presumption
of prejudice. See Glebe v. Frost, 574 U.S. 21, 23 (2014) (“Most constitutional mistakes
call for reversal only if the government cannot demonstrate harmlessness.”). Thus,
petitioner is still required to demonstrate prejudice under Strickland.
Contrary to petitioner’s claim, defense counsel did not fail to present a defense to
Count 1. As part of his defense of counts including Count 1, defense counsel presented
evidence and argument that the victim had led petitioner to believe she was 18, see
[Doc.39-3 at 28; 77–78; Doc. 39-4 at 26–27]; that he was not a person in a position of
trust and that the victim was not under his “care, custody or control,” see [Doc. 39-3 at
74; Doc. 39-4 at 24–25]; and that petitioner’s conduct was merely “some form of
regrettable online fantasizing.” [Doc. 39-4 at 31]. Thus, the undersigned concludes that
petitioner is unable to show a reasonable probability that the outcome of the proceeding
would have been different but-for counsel’s error.

4. Defense counsel made a motion for acquittal, and petitioner cannot show
that defense counsel’s performance in this regard was unreasonable.

Next, petitioner argues his counsel was ineffective by failing to make a motion for
judgment of acquittal concerning the lack of evidence of “care, custody or control” for
counts 1–3, 5–9, and 11–13. [Doc. 106-1 at 2 ¶ 4]. Simply put, defense counsel made a
motion for acquittal on these counts which included questioning whether the state had
shown that the victim was in the care, custody or control of petitioner. [Doc. 39-3 at 65–
67]. The Court rejected that motion. To the extent petitioner’s argument is that the motion
for acquittal should have focused more on the “care, custody or control” argument rather
than focusing on the argument that the crime required the defendant and victim be
physically present at the same location, the decision to focus on the latter is clearly the
type of strategic decision which Strickland holds is “virtually unchallengeable.”
Strickland, 466 U.S. at 690. Petitioner has presented nothing to overcome the
presumption that this decision was made in the exercise of reasonable professional
judgment.
5. Petitioner is unable to meet the performance prong of Strickland regarding
defense counsel’s lack of post-trial motions.

Next, petitioner states that “Defense counsel failed to file any post-trial motions.”
[Doc. 106-1 at 2 ¶ 5]. In his response to the Motion, petitioner elaborates:
Defense counsel filed no post-trial motions. The petitioner has been
informed by numerous attorneys that this is quite rare. If the council (sic)
did not believe sexual exploitation was in the indictment at a minimum the
deficiency should have been addressed within ten days post-trial. . .

[Doc. 116 at 23–24]. Similarly, petitioner argues that his counsel was ineffective for failing
to object to the jury instructions for Count 1; specifically, he contends that counsel should
have objected to Count 1 including sexual exploitation. [Doc. 106-1 at 2, ¶ 6]. As
discussed above, it appears that defense counsel mistakenly believed that “sexual
exploitation” was not included in the indictment for Count 1, and petitioner is able to meet
the first prong of Strickland as to that basis for ineffective assistance. However, sexual
exploitation was included in Count 1 of the indictment. As petitioner has directly
challenged this point as part of Ground Five of his petition, it is discussed more fully
above. Because the undersigned finds there was not a valid basis for such an objection,
petitioner is unable to show either the performance or prejudice prong of Strickland as
to his claims that defense counsel should have filed a post-trial motion challenging this
charge or that defense counsel should have objected to the jury instructions on the issue
of sexual exploitation.
6. Because the undersigned concludes there was no confrontation clause
violation, defense counsel did not act unreasonably in failing to object to the
same.

Next, petitioner argues that his counsel was ineffective by “fail[ing] to object to
surrogate testimony against the defendant concerning Count 10.” [Doc. 106-1 at 2, ¶ 7].
Petitioner cites the same underlying evidence as Ground Four, and argues that his
counsel was ineffective by failing to object to Sergeant Swiger’s testimony. [Doc. 116 at
19]. As set forth above, petitioner is unable to point to any testimony or evidence which
violated the confrontation clause, and the undersigned therefore finds that defense
counsel’s failure to object to Sergeant Swiger’s testimony was not unreasonable. Further,
even if petitioner could show that defense counsel’s lack of an objection fell below an
objective standard of reasonableness, he still could not meet the second prong of
Strickland, as petitioner himself concedes that “[t]he reliability of the testimony Swiger
provided from the testimonial statements and evidence investigated by McCord are not

at question.” [Doc. 94-3 at 44]. Petitioner is clearly unable to show that his counsel was
ineffective as to this ground.
7. Petitioner cannot show defense counsel acted unreasonably in not
addressing the timeline of petitioner’s time in the casino.

Next, petitioner argues his counsel was ineffective because counsel “suppressed”
evidence that petitioner “was not at a hotel origin at the time of an email from Count 10.”
[Doc. 106-1 at 2 ¶ 8]. More specifically, he contends that the video surveillance of
petitioner at the casino stopped “a full 5 hours prior to the email in a casino hotel full of
video cameras.” [Doc. 94-3 at 44]. He argues that defense counsel failed to argue that
“the state could not explain how the defendant left the hotel or what time he checked out
in a casino hotel full of video cameras.” [Id.].
In his testimony at trial, petitioner stated he did not send the email in Count 10 and
questioned whether he was at the hotel at the time the email was sent:
Q. Which of these emails did you not send?

A. Well - - -

Q. Go ahead, if you’re able to.

A. It’s listed as Count 10, the sexual picture thing, was sent at like six in
the morning or something. It looks like a spam email to me. I didn’t send
the thing. I wasn’t even there at the hotel at the time. I’d stayed there but I
wasn’t there at six, or I don’t know the time, seven or so it was sent. I did
not send that.
[Doc. 39-3 at 77]. Although in cross examination of Lieutenant Swiger, defense counsel
raised the point that the police could not say that the email in Count 10 originated from
petitioner’s computer, defense counsel shifted to focus on the issue of physical presence:
Q. . . . so I’m gonna assume and let’s assume for argument’s sake that
your investigation is correct about where this one comes from at the Mardi
Gras Hotel and Dr. Herto at some relevant point in time is a guest there,
aside from that one in Count 10, I’m assuming there is no belief or
contention that this young lady is there at the hotel?

A. No, I have no evidence of that.

Q. She’s denied that.

A. I’ve never asked her that question, but I would say she’s not there.

Q. Is there any evidence of any type that when any of these email
transmissions are sent that Dr. Herto and this young lady, Ms. ____, are
physically in the same location?

A. During the emails?

Q. Correct, during the transmission of these email messages.

A. No.

Q. No?

A. No, sir.

Q. In fact, it’s probably a very safe and very fair presumption that he is
in the comfort of his home for most of them and maybe his office for one or
two, maybe not, and she’s in the confines and comfort and security of her
own home.

A. That’s a fair assumption, yes.

[Doc. 39-3 at 61–62]. Then, in closing arguments, defense counsel argued that despite
admitting to sending the other emails, “he denies this one right from the beginning to the
State trooper.” [Doc. 39-4 at 26]. Defense counsel argues:
Let’s start with the simple part of this. Does the State prove to you beyond
a reasonable doubt that he actually sends this? Well, there’s a lot of
circumstantial evidence to suggest that he has. He’s sent a lot of other God-
awful emails with the same email address, AC_Rich. But there’s no proof
it comes from his computer at all. There’s no proof who sends it. There is
evidence there’s more owners and users of this AC_Rich email and that’s
not investigated. That’s not looked into at all by the State in this case.

[Id.].
Upon review of the trial transcript, the undersigned concludes petitioner’s defense
counsel acted reasonably. Notably, the prosecution did not utilize the video surveillance
to establish petitioner was at the casino, and thus it is questionable whether “us[ing]
evidence that strangely the state stopped video surveillance a full 5 hours prior to the
email in the casino,” [Doc.94-3 at 26], would support petitioner’s argument as it would
also involve highlighting to the jury video evidence that he had been at the casino.
Defense counsel had already raised the point, admitted by Lieutenant Swiger, that the
police could not say for sure the email had originated from petitioner’s computer, the jury
had heard that multiple people besides petitioner had access to this computer, and that
unlike the other emails in the case, petitioner had consistently denied sending this email
from the beginning. As set forth above, defense counsel already emphasized his
argument that the state could not prove petitioner sent this. With the benefit of hindsight,
defense counsel may have chosen to approach this count differently, but the undersigned
finds that the decision not to focus on the timeline of the video surveillance did not fall
below an objective standard of reasonableness.
8. Petitioner is unable to show that petitioner was unprepared for the
suppression hearing.

Next, petitioner argues his counsel was ineffective by failing to prepare for a pre-
trial suppression hearing and by failing to object to unlawfully obtained audio recordings.
Specifically, petitioner refers to an audio recording of Lieutenant Swiger interviewing
petitioner in his home. [Doc. 116 at 25]. At trial, Lieutenant Swiger testified about this
interview and its contents, and the state introduced an audio recording of the interview
into evidence. See [Doc. 39-3 at 50–53].
In his response to the Motion, petitioner clarifies that he contends defense counsel

“failed to suppress the evidence at a pre-trial suppression hearing on January 26, 2015.”
[Doc. 116 at 25]. Defense counsel had filed a motion to suppress, and argued that the
judge who issued the search warrants was biased because of a potential conflict of
interest based on his wife and daughter’s real estate business, which had had dealings
with petitioner. See [Doc. 39-18 at 48–50]. Defense counsel argued that the judge should
have had some kind of system in place to communicate any fiduciary or agency
relationships the wife’s real estate business was involved in, and that any evidence
gained via the affected search warrants needed to be suppressed. [Id.]. As part of this
hearing, defense counsel called as witnesses the judge who had signed those warrants

as well as that judge’s wife and daughter and conducted a thorough examination
attempting to support his arguments. Despite this, the court determined the motion
should be denied. A review of the transcript of that hearing reveals nothing to indicate
that defense counsel was unprepared—an attorney is not deemed ineffective simply
because his motion was unsuccessful.
Alternatively, petitioner refers to the recording as being unlawfully obtained,
[Doc. 106-1 at 2], and in his response to the Motion alleges that he was not provided any
Miranda rights prior to the interview. [Doc. 116 at 25]. He contends that it was
unreasonable for his attorney to fail to object to this recording as a result. [Id]. When a
subject is interrogated while in custody, a Miranda warning is required. Miranda v.
Arizona, 384 U.S. 436, 444 (1966). “But so long as a defendant is not ‘in custody,’ then
statements made during an interrogation remain admissible, even if the defendant were
not given Miranda warnings.” United States v. Leggette, 57 F.4th 406, 410 (4th Cir.
2023). Here, the recording in question was part of an interview of the petitioner that

Sergeant Swiger conducted inside the defendant’s home. Assuming, arguendo, no
Miranda warning was issued, none would have been required. Petitioner has not shown
that there was any valid basis for suppressing or objecting to this recording, and as such
is unable to show that defense counsel’s performance was unreasonable in this respect.
9. Petitioner is unable to show his counsel’s individual errors constituted
ineffective assistance, and he cannot therefore show that they were
“cumulative error.”

Finally, petitioner argues his counsel’s cumulative errors prejudiced the defendant
in the eyes of the jury. [Doc. 106-1 at 2 ¶ 10]. “[I]neffective assistance of counsel claims,
like claims of trial court error, must be reviewed individually, rather than collectively. . . .”
Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998). “A cumulative ineffective
assistance of counsel claim is not a basis for habeas relief because matters that are not
unconstitutional individually cannot be added together to create a constitutional violation.”
Dodson v. United States, No. 1:08-CR-53-2, 2013 WL 4401385, at *8 (N.D. W.Va. Aug.
15, 2013) (Bailey, J.) (citing United States v. Hicks, 307 Fed. App’x 758, 763 (4th Cir.
2009); Fisher, 163 F.3d at 853)). The undersigned has found that defense counsel’s
alleged errors did not constitute ineffective assistance, and they thus cannot be “added
together” to show cumulative error.
F. Petitioner’s Motion for Summary Judgment should be denied for reasons
already set forth above.

In his Motion for Summary Judgment, petitioner argues that he should be granted
summary judgment for Grounds 3-1 and 5 of his petition, which both attack Count 1 of his
indictment. [Doc. 117 at 1–2]. Specifically, he argues that emails alone are insufficient
to constitute an attempt and that the trial court has already found that the indictment did
not charge petitioner with sexual exploitation. Turning first to Ground “3-1,” the petition
argues that sending electronic communications alone cannot be considered an “attempt.”
As set forth above, the undersigned finds that the WVSCA’s ruling was not “objectively
unreasonable,” and therefore summary judgment in favor of petitioner is not warranted.
Likewise, as explained more fully above, the undersigned finds that sexual exploitation
was charged in the indictment and this argument is without merit.
V. RECOMMENDATION

For the reasons stated above, the undersigned recommends that Respondent’s
Motion for Judgement on the Pleadings [Doc. 109] be GRANTED, that Petitioner’s Motion
for Summary Judgment [Doc. 117] be DENIED, and that the amended petition [Doc. 106]
be DENIED and the case DISMISSED with prejudice. Further, as petitioner has filed his
response to the Motion for Judgment on the Pleadings, the undersigned recommends
that petitioner’s Notice of Intent to Reply [Doc. 113] be DENIED AS MOOT.
Within fourteen (14) days after being served with a copy of this report and
recommendation, the petitioner may file with the Clerk of Court specific written
objections identifying those portions of the recommendation to which objection is
made and the basis for such objections. A copy of any objections shall also be
submitted to the United States District Judge. Objections shall not exceed ten (10)
typewritten pages or twenty (20) handwritten pages, including exhibits, unless
accompanied by a motion for leave to exceed the page limitations, consistent with LR PL
P 12.
Failure to file written objections as set forth above shall constitute a waiver
of de novo review by the District Court and a waiver of appellate review by the

Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas
v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United
States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is DIRECTED to send a copy of this Report and Recommendation to the
Petitioner by certified mail, return receipt requested, to his last known address as shown
on the docket. In addition, because this Report and Recommendation completes the
referral from the District Court, the Clerk is DIRECTED to terminate the Magistrate Judge
association with this case.
DATED: August 12, 2024.

Bá ]tÅxá cA `tééÉÇx
JAMES P. MAZZONE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765290. Public record. Not legal advice.