Rollins v. Ames

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

GARY LEE ROLLINS,

Petitioner,

v. Civil Action No. 2:22-cv-00585

DONNIE AMES,

Respondent.

MEMORANDUM OPINION AND ORDER

Pending are the objections of the petitioner, Gary Lee

Rollins, filed on January 20, 2025, to the second Proposed Findings

and Recommendation (“PF&R”) of United States Magistrate Judge Omar

J. Aboulhosn, filed on December 17, 2024. ECF No. 34.

I. BACKGROUND

This petition for habeas corpus, filed under 28 U.S.C.

§ 2254, arises out of petitioner’s conviction for the murder of

his wife, Teresa Rollins, before the Nicholas County Circuit Court.

PF&R at 1. On August 21, 2012, following a four-day jury trial,

the petitioner was convicted of murder with no recommendation of

mercy. Id. Thereafter on September 26, 2012, after denying

petitioner’s motion for a new trial, the Nicholas County Circuit

Court sentenced the petitioner to life in prison without the

possibility of parole. Id. at 1-2. His appeal to the West Virginia

Supreme Court of Appeals (“SCAWV”) was denied on June 17, 2014,

confirming his conviction and sentence. Id.

1. First PF&R

On May 23, 2015, petitioner filed a petition for writ of

habeas corpus in the Nicholas County Circuit Court (“State habeas

court”). Id. at 3. That court appointed habeas counsel, and

through his attorneys, petitioner amended the habeas petition on

November 7, 2016. Id. The court then conducted an omnibus hearing

regarding the petition on January 17 and 30, 2019, and denied the

petition on January 16, 2020. Id. at 4-5.

On May 21, 2020, petitioner filed through counsel an

appeal to the SCAWV which affirmed the denial on June 10, 2022.

Id. at 5. He filed a pro se petition for a writ of certiorari

with the United States Supreme Court on August 3, 2022, which was

denied on January 9, 2023. Id.

On December 16, 2022, while the petition for writ of

certiorari was pending, petitioner initiated the instant matter by

filing, through counsel, the § 2254 petition for writ of habeas

corpus. PF&R at 5. The petition describes three grounds for

relief: (1) “Prosecutorial [m]isconduct in the form of lying to

the jury, and suppressing evidence of a witness inducement,” (2)

“Deprivation of an impartial jury of qualified jurors, and of

fairness in jury procedures,” and (3) “Errors of constitutional

scope in evidentiary rulings.” Id. at 6. Petitioner did not file

an accompanying memorandum containing legal arguments and

explaining what constitutional provisions or laws were violated by

those three alleged occurrences. Id.

Thereafter, the respondent filed his first motion to

dismiss and for summary judgment with an accompanying memorandum

arguing that the petitioner failed to state a claim and asserting

defenses on the merits to the grounds for relief contained in the

petition. ECF Nos. 10, 11.

Petitioner filed a response in opposition arguing that

he stated a cognizable claim for relief by following the directions

of the court-authored habeas form; he also responded to

respondent’s arguments on the merits, ECF No. 17, to which

respondent filed a reply. ECF No. 18.

The magistrate judge entered the first Proposed Findings

and Recommendation on January 10, 2024, which recognized that the

petitioner failed to state a claim because he did not attach the

required accompanying memorandum raising petitioner’s legal

arguments. ECF No. 20. Nevertheless, the magistrate judge

recommended that the respondent’s motion be denied in order to

allow petitioner the opportunity to amend his petition. Id. On

June 13, 2024, the court adopted the first Proposed Findings and

Recommendation, granted petitioner’s “Motion for Leave to Amend

Petition,” directed the petitioner to file his amended petition,

and referred the matter again to the magistrate judge for further

proceedings. ECF No. 24.

2. Second PF&R

On July 3, 2024, the petitioner filed his amended

petition. ECF No. 25. The respondent, on August 19, 2024, filed

a second “Motion to Dismiss and Judgment on the Pleadings.” ECF

No. 29. Thereafter, the petitioner filed a “Reply/Objections” to

respondent’s motion on September 19, 2024. ECF No. 32. The

respondent then filed his “Reply” brief on September 26, 2024,

responding to petitioner’s objections and clarifying that

respondent was raising the issue of procedural default as found in

the second PF&R. ECF No. 33. The petitioner did not file a reply.

Nearly three months later, the magistrate judge entered

the second PF&R on December 17, 2024, recommending that the court

grant respondent’s second “Motion to Dismiss and for Judgment on

the Pleadings.”1 PF&R at 46.

1 The magistrate judge concluded that the petitioner failed to state a cognizable

claim in his amended petition as to his allegations that (1) he was denied an

impartial jury of qualified jurors, or fairness in the jury procedures (“Ground

Two”) and (2) he was subject to errors in evidentiary rulings (“Ground Three”).

PF&R at 43. Petitioner does not raise objections to the portion of the PF&R

relating to Grounds Two and Three.

The petitioner, after receiving an extension, timely

filed objections to the second PF&R on January 20, 2025. ECF No.

37. The petitioner raises four objections to the second PF&R: (1)

application of the defense of procedural default is improper

because the respondent failed to timely raise the defense of

procedural default arising out of the defendant’s failure to object

at trial to the prosecutor’s closing argument that the State’s

witness April Bailes (“Ms. Bailes”), who was the defendant’s

paramour at the time of the murder, would be prosecuted when

knowing she would not, (2) alternatively, that the magistrate judge

erred in finding that the petitioner failed to show cause and

prejudice or a fundamental miscarriage of justice in the face of

procedural default, (3) the magistrate judge erred in finding no

merit to petitioner’s Brady claim relating to failure to disclose

the prosecutor’s alleged agreement with the State’s witness Ms.

Bailes, and (4) the magistrate judge erred in concluding that

petitioner failed to establish a Napue claim relating to the

prosecutor’s alleged false statement to the jury. Id.

On February 3, 2025, the respondent filed a response to

the objections raised by the petitioner, again emphasizing

procedural default. ECF No. 38. The petitioner has not filed a

reply.

II. LEGAL STANDARD

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 and recommendations to which

no objection has been made. See Thomas v. Arn, 474 U.S. 140

(1985). Failure to timely file objections constitutes a waiver of

de novo review and the plaintiff’s right to appeal the order of

the court. See 28 U.S.C. § 636(b)(1); see also United States v.

De Leon-Ramirez, 925 F.3d 177, 181 (4th Cir. 2019) (parties

typically may not “appeal a magistrate judge’s findings that were

not objected to below, as [28 U.S.C.] § 636(b) doesn’t require de

novo review absent objection”); Snyder v. Ridenour, 889 F.2d 1363,

1366 (4th Cir. 1989).

Upon an objection to the PF&R, the court reviews de novo

only “those portions of the report ... to which objection is made.”

28 U.S.C. § 636(b)(1); see also Howard’s Yellow Cabs, Inc. v.

United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)(“De novo

review is not required when a party makes general or conclusory

objections that do not direct the court to a specific error ....”);

United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007);

Opriano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). “Absent a

specific and timely filed objection, the court reviews only for

‘clear error,’ and need not give any explanation for adopting the

[PF&R].” United States v. Hernandez-Aguilar, 359 F. Supp. 3d 331,

334 (E.D.N.C. 2019).

III. ANALYSIS OF SECOND PF&R

A. Procedural Default

The petitioner, in his amended petition, alleges that

Prosecutor Milam’s closing remarks at trial constitute

prosecutorial misconduct. ECF Nos. 25, 26. Specifically,

petitioner claims that Prosecutor Milam, to bolster the testimony

of the State’s witness Ms. Bailes, lied to the jury when he

proclaimed during rebuttal that the jury could “bet your behind”

that he intended to prosecute Ms. Bailes. ECF No. 26 at 31. In

his State habeas appeal, the petitioner raised the issue of

Prosecutor Milam’s remarks. ECF No. 1-2. However, the SCAWV

refrained from addressing the issue after determining that the

petitioner failed to object to the prosecutor’s remarks during

trial and thereby waived the claim. Id.

Next, the SCAWV declined to assess the prosecutorial

misconduct claim under the “plain error” standard after

determining that, “in making accusations against the prosecutor in

its closing argument, the defense invited the prosecutor’s

comment.” Id. at 18. Since a party is prevented from “inducing

an inappropriate or erroneous response and then later seeking to

profit from that error,” the petitioner could not invoke the plain

error standard. See State v. Crabtree, 482 S.E.2d 605, 612 (W.

Va. 1996).

In the second PF&R, the magistrate judge noted that

respondent’s “mere indication that the SCAWV found the Petitioner

had waived the [prosecutorial misconduct] claim would be

insufficient to raise procedural default as a defense.” PF&R at

27. However, the magistrate judge concluded that “[r]espondent

clarified he was asserting procedural default in his Reply” to the

petitioner’s objections regarding respondent’s second “Motion to

Dismiss and Judgment on the Pleadings.” Id.

Petitioner maintains that his prosecutorial misconduct

claim is not barred based on procedural default because respondent

failed to properly raise it as an affirmative defense. ECF No.

37. Specifically, petitioner contends that respondent did not

raise procedural default in a response to a pleading or in a motion

to dismiss as required for an affirmative defense by FRCP 8(c),

but instead did so in a reply. Id. at 3.

The respondent in turn asserts that while he clarified

procedural default in his Reply brief, it was “intimately related”

to his argument raised in his memorandum in support of the second

motion to dismiss and for summary judgment, by virtue of which

respondent contends that he properly invoked the affirmative

defense and that petitioner’s waiver, by failing to object at

trial, constitutes a procedural default. ECF No. 38.

As noted by the respondent in his response to the

petitioner’s objections, a district court generally cannot

consider new arguments raised in a reply brief. De Simone v. VSL

Pharms, Inc., 36 F.4th 518, 531 (4th Cir. 2022)(quoting United

States v. Small, 720 F.3d 193, 197 (4th Cir. 2013)). However, a

“district court may consider an argument raised for the first time

on reply under certain circumstances.” Id. In choosing to

exercise such discretion a district court “rel[ies] on a variety

of circumstances.” Id. The district court may decide to “overlook

waiver” by the respondent where the untimely argument is

“intimately related” to the grounds for the respondent’s motion.

Id. Additionally, as noted in De Simone, the court may choose to

consider an untimely argument where the non-movant had the

“opportunity to contest an untimely argument in a sur-reply.” Id.

Upon review, the court finds that the magistrate judge

aptly concluded that the prosecutorial misconduct claim is

procedurally defaulted. While the respondent fails to directly

claim procedural default in his second motion to dismiss (ECF Nos.

29, 30), he reiterates in his Reply brief the bases of the claims

he had set forth in his second motion to dismiss. The respondent,

in his second motion to dismiss, asserted that the SCAWV “properly

found that Petitioner waived any objection to the prosecutor’s

comment and that petitioner invited such error.” ECF No. 30 at

22. Thereafter, in respondent’s Reply, he restates that same

position. ECF No. 33 at 3-4. The respondent asserts in his Reply

that “[i]n essence, Petitioner’s waiver constitutes procedural

default in federal court because the State court did not address

the claim based in part on waiver.” Id. These statements are

intimately related in that they similarly represent respondent’s

contention that petitioner failed to preserve any objection to the

prosecutor’s remarks made during his closing argument by failing

to object at trial.

Further, the petitioner had various opportunities to

raise issue with the procedural barring of the prosecutorial

misconduct claim. First, the court granted petitioner’s “Motion

for Leave to Amend Petition” (ECF No. 22) and directed the

petitioner to file an amended petition “in order to include his

legal arguments in support of the grounds for relief stated

therein.” ECF No. 24. In his amended petition, the petitioner

did not convey any argument regarding the procedural default issue.

ECF No. 26. Additionally, petitioner could have sought leave to

file a sur-reply once he was on specific notice of respondent’s

procedural default assertion. Although there is no requirement

for the petitioner to file a sur-reply, the “lack of requirement

doesn’t mandate” the court “ignore a non-movant’s strategic

decision.” De Simone, 36 F.4th at 532.

Moreover, it is again noted that the respondent filed

his Reply brief on September 26, 2024. The magistrate judge filed

the PF&R on December 17, 2024. Nearly three months passed after

the Reply brief was filed until the PF&R was filed, which provided

the petitioner with ample time in which to file a sur-reply.

Finally, petitioner failed to raise the issue again when

he neglected to file a reply to the respondent’s response in the

district court to the petitioner’s objections. ECF No. 38. In

view of the fact that the petitioner repeatedly chose not to raise

issue with respondent’s assertion of procedural default, though

having multiple opportunities to do so, the issue cannot now be

successfully contested by the petitioner.

As a result, the court finds that it may consider the

respondent’s argument and concludes that the court is procedurally

barred from considering the prosecutorial misconduct claim, unless

the petitioner demonstrates that procedural default is excused.

The petitioner has attempted to do so by objecting that the

magistrate judge erred in finding petitioner failed to show cause

and prejudice or a fundamental miscarriage of justice that would

excuse his procedural default. ECF No. 37. The court agrees with

the magistrate judge that petitioner failed to demonstrate either

cause or prejudicial circumstances excusing his procedural default

or that the prosecutor’s remarks during closing arguments caused

a miscarriage of justice. PF&R at 28. As noted by the magistrate

judge there is no indication that some objective factor external

to the defense impeded defense counsel from objecting to the

prosecutor’s remarks during closing arguments. Id. Additionally,

there is no indication that the petitioner faced errors at his

trial that worked to his “actual and substantial disadvantage.”

Id. Petitioner’s objection in this regard is without merit.

Given the evidence presented, the court finds there was

no unreasonable determination of facts or application of federal

law regarding the procedural barring of the prosecutorial

misconduct claim, and further finds that the issue of procedural

default was timely raised in the district court.

B. Brady Claim

Petitioner objects to the magistrate judge’s rejection

of his Brady claim that the prosecutor failed to advise the defense

of an agreement with Ms. Bailes in exchange for her testimony.

ECF No. 37. The petitioner continues to maintain that a plea

agreement existed, and material evidence was suppressed. Id. In

his amended petition, the petitioner emphasizes that Prosecutor

Milam failed to disclose offers, promises, or discussions of

leniency as to Ms. Bailes. ECF Nos. 25, 26. The petitioner

contends that the SCAWV erred when it determined that no plea

agreement existed between the State and Ms. Bailes before her

testimony. Id. at 26.

Under scrutiny in the Brady claim is the testimony of

Ms. Bailes, Ms. Stanton, and Prosecutor Milam. First, Ms. Bailes

testified on three separate occasions about the existence of a

plea agreement. PF&R at 32. On August 15, 2012, at the criminal

trial Ms. Bailes testified that she had not been promised anything

in exchange for her testimony and there was no plea agreement.

ECF No. 10-3. Six years later, on October 15, 2018, she asserted

in her deposition that Prosecutor Milam promised not to prosecute

her in exchange for her testimony. ECF No. 10-8. Then, on January

30, 2019, during the omnibus hearing before the State habeas court,

she stated she believed there would be a plea agreement provided

she testified but, ultimately, she acknowledged that her testimony

during the underlying criminal trial, where she stated there was

no plea agreement, was most accurate. Id. Second, Public Defender

Cynthia Stanton, who represented Ms. Bailes at the time of the

trial, testified that there were negotiations of an oral plea

agreement, but nothing concrete. ECF No. 10-8. Finally,

Prosecutor Milam testified he intended to prosecute Ms. Bailes,

but upon further examination determined he could not. ECF No. 10-

7.

The State habeas court concluded that “it is undisputed

that the terms of any plea agreement in this case were never

reduced to writing.” ECF No. 1-5. The State habeas court

determined that “[b]ased on the totality of the evidence, the Court

FINDS that there was no plea agreement or immunity agreement

between the State and April Bailes when she testified at the trial

of the petitioner.” Id. at 17-18. The SCAWV likewise found that

the State habeas court’s conclusion that there was no consummated

plea agreement was adequately supported. ECF No. 1-7 at 10.

Without the existence of a plea agreement, the SCAWV found there

was no support for petitioner’s Brady claim or the assertion that

Ms. Bailes’ trial testimony was false. Id.

In the second PF&R, the magistrate judge concluded there

was no “clear and convincing evidence” that the State habeas court

made an unreasonable determination of facts when it found there

was no plea agreement in existence to suppress. ECF No. 34 at 32.

The court finds no error in the magistrate judge’s conclusion. In

order to find merit in petitioner’s objection, the court would

have to conclude that it was unreasonable for the State habeas

court to have determined there was no plea agreement to suppress

even though the testimony adequately supports the finding that no

plea agreement existed. The court agrees with the magistrate judge

that the testimony at issue does not sufficiently establish the

existence of a plea agreement.

Next, even if the court assumes a plea agreement existed

the petitioner has not established materiality or prejudice as

required by Brady. Ms. Bailes’ credibility was rigorously

challenged by defense counsel during the trial. PF&R at 37. Thus,

there was considerable opportunity to draw out inconsistences in

her testimony for the jury. As noted by the State habeas court,

“[t]here was overwhelming evidence presented in the trial that led

to the conviction of this petitioner aside from the testimony of

April Bailes.” Id. The court agrees with the magistrate judge

that there is no indication of a reasonable probability that a

different result would have ensued with the disclosure of the

alleged consummated plea agreement. Id.

Accordingly, the court overrules petitioner’s objection

insofar as it challenges the magistrate judge’s finding that

petitioner’s Brady claim is without merit.

C. Napue Claim

Petitioner also objects to the magistrate judge’s

conclusion that petitioner’s Napue claim is without merit. ECF

No. 37. The petitioner maintains that Prosecutor Milam violated

Napue when he “lied outright to the jury about his intentions

during [closing] argument.” ECF No. 26. The prosecutor is said

by him to have “had no intention of indicting Ms. Bailes at the

moment he told the jury he intended to do just that.” Id.

The magistrate judge found that petitioner’s claim does

not constitute Napue material. PF&R at 39. As explained under

the Brady claim, there was no evidence that a plea agreement with

Ms. Bailes was ever consummated. Id. Further, Prosecutor Milam

testified that it was his intent to indict Ms. Bailes, but he

ultimately determined that he could not do so after conducting

research. Id.

Moreover, as explained under the Brady claim, defense

counsel rigorously challenged Ms. Bailes’ credibility before the

jury. PF&R at 37. The evidence of the petitioner’s guilt was

otherwise overwhelming as found by the State habeas court. Id.

The magistrate judge aptly concluded that the determination made

by the State habeas court was “not contrary to, or an unreasonable

application of, clearly established federal law; or based on an

unreasonable determination of the facts.” Id. at 41.

The court finds no error in the magistrate judge’s

conclusion. First, it is not unreasonable for the magistrate judge

to conclude that Prosecutor Milam did not lie about his then intent

to prosecute Ms. Bailes. Second, as noted by the magistrate judge,

the petitioner did not establish the necessary prejudice or

materiality required.

IV. CONCLUSION

Accordingly, it is ORDERED that:

1. The second PF&R (ECF 34) be, and hereby is, ADOPTED and

incorporated herein;

2. Respondent’s “Motion To Dismiss and for Judgment on the

Pleadings” (ECF 29) be, and hereby is, GRANTED;

3. Petitioner’s objections (ECF 37) be, and hereby are,

OVERRULED ;

4. This action be, and hereby is, DISMISSED from the docket

of this court.

The Clerk is directed to transmit copies of this order

to all counsel of record, any unrepresented parties, and the United

States Magistrate Judge.

ENTER: March 25, 2025

sh Pall eo

Jo . Copenhaver, Jr.

Senior United States District Judge

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