Respondents Brief — Amos Gabriel Hicks, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex
Supreme Court briefJun 14, 2023
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No. 22-7189
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
______________
AMOS GABRIEL HICKS, PETITIONER,
v.
DONNIE AMES, SUPERINTENDENT,
MOUNT OLIVE CORRECTIONAL COMPLEX, RESPONDENT.
______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
______________
BRIEF IN OPPOSITION
______________
PATRICK MORRISEY
Attorney General
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Principal Deputy Solicitor
General
Office of the
West Virginia Attorney General
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
The state courts concluded Petitioner had not shown any
prejudice from his failure to receive one part of his trial
transcripts
on
direct
appeal
--
was
that
decision
unreasonable?
2.
The state courts concluded Petitioner had not shown that his
appellate counsel was constitutionally ineffective merely
because
that
counsel
did
not
obtain
certain
additional
transcripts beyond the hundreds of pages he did receive -was that decision unreasonable?
3.
The state courts concluded Petitioner had not shown any
constitutional
error
when
he
was
unable,
after
a
court
reporter’s death, to obtain transcripts of all proceedings in
connection with his state post-conviction motions -- was that
decision unreasonable?
(I)
RELATED PROCEEDINGS
Circuit Court for McDowell County, West Virginia:
State v. Amos Gabriel Hicks, No. 08-F-154-S (Oct. 5, 2009)
Amos Gabriel Hicks v. David Ballard, Warden, Mt. Olive
Corr. Complex, No. 12-C-100-S (Oct. 31, 2018)
Supreme Court of Appeals of West Virginia:
State v. Amos Gabriel Hicks, No. 35670 (Apr. 14, 2011)
Amos Gabriel Hicks v. Donald Ames, Superintendent, Mt.
Olive Corr. Complex, No. 18-1025 (June 3, 2020)
United States District Court for the Southern District of West
Virginia:
Amos Gabriel Hicks v. Steven Canterbury, No. 2:13-cv-27830
(Oct. 28, 2015)
Amos Gabriel Hicks v. Donald F. Ames, Superintendent, Mt.
Olive Corr. Complex, No. 1:20-00665 (Sept. 29, 2021)
United States Court of Appeals for the Fourth Circuit:
Amos Gabriel Hicks v. Donald F. Ames, Superintendent, Mt.
Olive Corr. Complex, No. 21-7526 (May 23, 2022)
United States Supreme Court:
Amos Gabriel Hicks v. Booker T. Stephens, Judge Circuit
Court of W. Va., McDowell Cnty., 12–9986 (Oct. 7, 2013)
(II)
TABLE OF CONTENTS
OPINION BELOW.................................................. 1
JURISDICTION................................................... 2
INTRODUCTION................................................... 2
STATEMENT...................................................... 3
ARGUMENT...................................................... 11
CONCLUSION.................................................... 28
(III)
TABLE OF AUTHORITIES
Page(s)
Cases
Bransford v. Brown,
806 F.2d 83 (6th Cir. 1986) .................................17
Brown v. Davenport,
142 S. Ct. 1510 (2022) ......................................14
Bush v. Sec’y, Fla. Dep’t of Corr.,
888 F.3d 1188 (11th Cir. 2018) ..............................26
Coppedge v. United States,
369 U.S. 438 (1962) .........................................15
Cullen v. Pinholster,
563 U.S. 170 (2011) .........................................22
Draper v. Washington,
372 U.S. 487 (1963) .....................................16, 23
Dugger v. White,
No. 96-16473, 1998 WL 10396 (9th Cir. Jan. 12, 1998) ........24
Engle v. Isaac,
456 U.S. 107 (1982) .........................................15
Fahy v. Horn,
516 F.3d 169 (3d Cir. 2008) .................................17
Gen. Talking Pictures Corp. v. W. Elec. Co.,
304 U.S. 175 (1938) .........................................12
Green v. Scully,
840 F. Supp. 254 (S.D.N.Y. 1993) ............................20
Griffin v. Illinois,
351 U.S. 12 (1956) ..........................................15
Gruszie v. United States,
No. 16369, 1991 WL 127709 (9th Cir. July 15, 1991) ..........24
Harrington v. Richter,
562 U.S. 86 (2011) ......................................14, 23
(IV)
TABLE OF AUTHORITIES
(continued)
Page(s)
Hays v. Newsom,
3 F. App’x 270 (6th Cir. 2001) ..............................26
Higginbotham v. Louisiana,
817 F.3d 217 (5th Cir. 2016) ................................16
Hopper v. Evans,
456 U.S. 605 (1982) .........................................20
Howard v. Cain,
No. 11-CV-1365, 2015 WL 5436918 (W.D. La. Aug. 6, 2015) .....15
Jackson v. Renico,
179 F. App’x 249 (6th Cir. 2006) ............................20
Kheireddine v. Gonzales,
427 F.3d 80 (1st Cir. 2005) .................................17
Kyles v. Whitley,
514 U.S. 419 (1995) .........................................13
Lackawanna Cnty. Dist. Att’y v. Coss,
532 U.S. 394 (2001) .........................................26
Madera v. Risley,
885 F.2d 646 (9th Cir. 1989) ................................15
Maryland v. Kulbicki,
577 U.S. 1 (2015) ...........................................22
McFarland v. Scott,
512 U.S. 849 (1994) .........................................24
Menzies v. Powell,
52 F.4th 1178 (10th Cir. 2022) ..........................16, 17
Miller-El v. Cockrell,
537 U.S. 322 (2003) .........................................14
Mitchell v. Wyrick,
698 F.2d 940 (8th Cir. 1983) ................................16
Moore v. Carlton,
74 F.3d 689 (6th Cir. 1996) .................................19
(V)
TABLE OF AUTHORITIES
(continued)
Page(s)
Mullen v. Blackburn,
808 F.2d 1143 (5th Cir. 1987) ...............................17
Murray v. Giarratano,
492 U.S. 1 (1989) ...........................................26
Nguyen v. Archuleta,
369 F. App’x 889 (10th Cir. 2010) ...........................24
NLRB v. Hendricks Cnty. Rural Elec. Membership Corp.,
454 U.S. 170 (1981) .........................................13
Norvell v. Illinois,
373 U.S. 420 (1963) .....................................16, 27
Pennsylvania v. Finley,
481 U.S. 551 (1987) .........................................26
Randolph v. Taylor,
69 F. App’x 824 (9th Cir. 2003) .............................26
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .........................................21
Rickard v. Burton,
2 F. App’x 469 (6th Cir. 2001) ..............................27
Ruark v. Gunter,
958 F.2d 318 (10th Cir. 1992) ...............................26
Santiago v. Coughlin,
No. 96-2229, 1997 WL 32924 (2d Cir. Jan. 8, 1997) .......18, 24
Saunders v. Phila. Dist. Att’y’s Off.,
546 F. App’x 68 (3d Cir. 2013) ..............................21
Sexton v. Beaudreaux,
138 S. Ct. 2555 (2018) ......................................19
Shinn v. Kayer,
141 S. Ct. 517 (2020) .......................................23
Shinn v. Ramirez,
142 S. Ct. 1718 (2022) ......................................13
(VI)
TABLE OF AUTHORITIES
(continued)
Page(s)
Shoop v. Hill,
139 S. Ct. 504 (2019) .......................................14
Shoop v. Twyford,
142 S. Ct. 2037 (2022) ......................................14
State v. Hicks,
725 S.E.2d 569 (W. Va. 2011) ..........................1, 6, 10
State v. Mayle,
No. 11-0562, 2012 WL 2914271 (W. Va. Feb. 13, 2012) .........25
State v. Pannell,
225 W. Va. 743 (W. Va. 2010) ................................25
State v. R.T.,
No. 11-0468, 2012 WL 2915020 (W. Va. Feb. 14, 2020) .........25
State v. Richardson,
811 S.E.2d 260 (W. Va. 2018) ................................21
Taylor v. Illinois,
484 U.S. 400 (1988) .........................................18
United States v. Cadarette,
No. 86-1230, 1987 WL 37200 (6th Cir. Apr. 23, 1987) .........18
United States v. Carrazana,
70 F.3d 1339 (D.C. Cir. 1995) ...............................17
United States v. Charles,
313 F.3d 1278 (11th Cir. 2002) ..............................17
United States v. Hoey,
71 F. App’x 962 (4th Cir. 2003) .............................17
United States v. Johnston,
268 U.S. 220 (1925) .........................................12
United States v. MacCollom,
426 U.S. 317 (1976) .........................................15
United States v. Malady,
960 F.2d 57 (8th Cir. 1992) .................................18
(VII)
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Savage,
970 F.3d 217 (3d Cir. 2020) .................................16
United States v. Weisser,
417 F.3d 336 (2d Cir. 2005) .................................17
Weaver v. Massachusetts,
582 U.S. 286 (2017) .........................................22
White v. Woodall,
572 U.S. 415 (2014) .........................................15
Winkler v. Parris,
927 F.3d 462 (6th Cir. 2019) ................................18
Woods v. Donald,
575 U.S. 312 (2015) .........................................13
Woods v. Etherton,
578 U.S. 113 (2016) .........................................23
Statutes
28 U.S.C. § 2254..............................2, 3, 9, 10, 14, 23
W. Va. Code § 51-7-7...........................................15
Rules
Sup. Ct. R. 10.............................................11, 12
West Virginia Rule of Criminal Procedure 404(b)...........4, 5, 6
Other Authority
Stephen M. Shapiro, et al.,
Supreme Court Practice (10th ed. 2013) ......................12
(VIII)
IN THE SUPREME COURT OF THE UNITED STATES
______________
No. 22-7189
AMOS GABRIEL HICKS, PETITIONER,
v.
DONNIE AMES, SUPERINTENDENT,
MOUNT OLIVE CORRECTIONAL COMPLEX, RESPONDENT.
______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
______________
BRIEF IN OPPOSITION
______________
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Fourth Circuit (Pet.App.A1-A3) is unreported but available at 2022
WL 1619847.
the
Southern
The opinion of the United States District Court for
District
of
West
Virginia
(Pet.App.B1-B16)
is
unreported but available at 2021 WL 4480993; the related report
and recommendation from the magistrate judge is found at 2021 WL
4485002.
The opinion of the Supreme Court of Appeals of West
Virginia on Petitioner’s petition for a writ of habeas corpus
(Pet.App.E1-2) is unreported but found at 2020 WL 2904845.
That
Court’s opinion on Petitioner’s direct appeal (Pet.App.C1-C14) is
published as State v. Hicks, 725 S.E.2d 569 (W. Va. 2011) (per
curiam).
2
JURISDICTION
The United States Court of Appeals for the Fourth Circuit
entered its judgment on May 23, 2022 and denied rehearing on June
23, 2022.
2022.
Petitioner petitioned for certiorari on September 19,
This Court has subject-matter jurisdiction under 28 U.S.C.
§ 1254(a).
INTRODUCTION
In his petition for a writ of certiorari, Petitioner Amos
Hicks tries to turn a court reporter’s death into a constitutional
claim justifying federal habeas-corpus relief.
Petitioner could
not obtain certain transcripts from his initial criminal trial
when he sought habeas relief in state court.
The transcripts were
unavailable because the reporter had passed away, and her records
from trial had not been preserved.
Yet years earlier, Petitioner
had pursued a direct appeal from his conviction with all the
records that he needed.
And even today, Petitioner has never
identified any colorable claims that more transcript pages might
have
allowed
Petitioner’s
him
to
argument
make.
Twelve
otherwise.
judges
have
now
rejected
Lacking
any
suggestion
of
prejudice, this fact-bound case is a poor candidate for review
from this Court -- especially when viewed through the highly
deferential
lens
of
federal
habeas
review
judgment.
The Court should deny the Petition.
of
a
state-court
3
STATEMENT
In 2009, a McDowell County, West Virginia jury convicted
Petitioner
of
first-degree
conspiracy.
Pet.App.C5.
murder,
malicious
assault,
and
The circuit court sentenced Petitioner
to life without possibility of parole, and the Supreme Court of
Appeals of West Virginia affirmed. Id. Petitioner then petitioned
for
habeas
corpus
in
state
circuit
conviction on multiple grounds.
court,
challenging
his
The circuit court denied that
petition, see Ex. 17, Hicks v. Ames, No. 1:20-cv-00665 (S.D.W. Va.
Fed. 10, 2021), ECF No. 14-18 (“State.Habeas.Op.”), and the Supreme
Court of Appeals of West Virginia again affirmed, Pet.App.E1.
Petitioner next turned to the federal courts, filing a habeas
action under 28 U.S.C. § 2254 in the U.S. District Court for the
Southern District of West Virginia.
That court likewise denied
Petitioner relief, Pet.App.B1, and the Fourth Circuit denied a
certificate of appealability and dismissed the appeal, Pet.App.A2.
1.
Petitioner
McDowell County.
was
a drug
Pet.App.C5.
dealer
in the
rural
area of
He supplied Mose Mullins –- among
others -- with drugs to sell and use.
Id.
Unfortunately, driven
by his OxyContin addiction, Mr. Mullins soon became indebted to
Petitioner.
Id.
So to address the drug debt, the two men struck
an agreement: Mr. Mullins would kill several people Petitioner
thought had stolen things from him, and Petitioner would pay Mr.
Mullins $5,000 a killing in return.
Id. at 5-6.
Petitioner gave
4
Mr. Mullins a gun and a promise of more drugs if he succeeded.
Id. at 6.
Petitioner’s plan became a reality in May 2001.
Mr. Mullins
lured three people to a secluded area on the pretense of a drug
buy.
Pet.App.C7.
Once there, Mr. Mullins shot all three.
Id.
One victim died at the scene, another survived but was paralyzed,
and the third survived after fleeing with five gunshot wounds.
Id.
Testimony at trial showed that Petitioner had threatened and
brutally beaten at least one other person who he thought had
wronged him.
Id.
Thankfully, authorities arrested and charged
Petitioner before he could send Mr. Mullins after her.
After
a
four-day
trial
laying
out
Petitioner’s
role
in
launching this murder-for-hire scheme, a jury convicted Petitioner
on all counts.
Pet.App.C5.
The state circuit court sentenced him
to life imprisonment without the possibility of parole for his
conviction of first-degree murder, not less than two nor more than
ten years of imprisonment for his conviction of malicious assault,
and not less than one nor more than five years of imprisonment for
his conviction of conspiracy, with those sentences to be served
consecutively.
2.
Id.
Petitioner appealed.
On direct appeal, Petitioner raised two challenges.
First, he maintained that the circuit court erred in admitting
certain evidence of Petitioner’s drug dealing under West Virginia
Rule of Criminal Procedure 404(b).
See Pet.App.C1.
And second,
5
he insisted that the evidence presented at trial could not sustain
his convictions, chiefly because he believed Mr. Mullins was not
a credible witness.
Id.
The Supreme Court of Appeals of West Virginia rejected both
arguments in a per curiam opinion.
First, “the State [had]
presented specific and detailed purposes establishing credible
explanations and rationales for the admission of [the Rule 404(b)]
evidence.”
Pet.App.C10.
At the same time, the circuit court gave
repeated limiting instructions on that evidence, including “during
the charge to the jury at the conclusion of trial.”
Id.
Second,
it was “abundantly clear” that the State had produced sufficient
evidence of guilt.
Pet.App.C11.
Indeed, it was “undeniable” that
the evidence supported Petitioner’s guilt beyond a reasonable
doubt.
3.
Pet.App.C12.
Beginning in May 2012, Petitioner began filing multiple
pro se petitions for habeas corpus in state court even though the
state court had appointed counsel.
seven grounds for habeas relief.
In total, he raised thirty-
State.Habeas.Op.5.
As relevant here, Petitioner raised four claims related to
the transcripts from his initial trial: (1) an unconstitutional
failure to provide “proof of a Valid Jury Trial Verdict” because
certain transcripts had not been obtained; (2) a denial of “Due
Process and Equal Protection of Law” where the State purportedly
“fail[ed] to produce the transcripts of all proceedings and the
6
trial of the matter”; (3) a denial of “full ‘Appellate Review’”
because
transcripts
ineffective
were
assistance
of
purportedly
counsel
“missing”;
because
counsel
request[] all of the Transcripts to be transcribed.”
and
(4)
“failed
to
See Ex. 18,
First Amend. To Pet. For Writ of Habeas Corpus at 49, 95, 110,
112, Hicks, No. 1:20-cv-00665 (S.D.W. Va. Fed. 10, 2021), ECF No.
14-19.
In each of these four claims, Petitioner argued that he needed
transcripts from every part of his trial and did not receive them.
Petitioner had requested transcripts twice: before his direct
appeal and before his state habeas petition.
Back
in
October
2009,
Petitioner’s
counsel
had
before
ordered
filing
his
transcripts
direct
appeal,
of
witness
all
testimony, the State’s opening statement and closing arguments,
discussions on the Rule 404(b) issues, discussions on Petitioner’s
motions for acquittal and new trial, the sentencing hearing, and
the jury instructions.
2.
State.Habeas.Op.34; see also Pet.App.G1-
The court reporter in turn prepared and provided all the
requested
transcripts
to
Petitioner
--
amounting
to
several
hundred pages -- except for the transcription of the circuit
court’s instructions to the jury.
See Ex. 26, Habeas Hearing Tr.
154:11-155:2, Hicks, No. 1:20-cv-00665 (S.D.W. Va. Fed. 10, 2021),
ECF No. 14-27.
A written copy of the jury instructions and charge
was provided to the Supreme Court of Appeals in the direct appeal.
7
State.Habeas.Op.41.
The Supreme Court of Appeals even referenced
these instructions in its final decision.
Just
before
filing
his
state
Pet.App.C10.
habeas
petition
in
2012,
Petitioner’s appointed counsel requested more transcripts.
These
transcripts encompassed voir dire, Petitioner’s opening statement
and closing arguments, certain “unknown proceedings” lasting 39
minutes during
one day
of trial,
and
the
State.Habeas.Op.35; see also Pet.App.H1.
time,
the
original
court
reporter
State.Habeas.Op.35; see also Pet.App.K1-2.
jury instructions.
Unfortunately, by that
had
passed
away.
When the new reporter
could not locate materials from Petitioner’s trial in the former
reporter’s office, she contacted the former reporter’s husband to
ask whether he might know of any materials that the reporter might
have stored at home. State.Habeas.Op.35-36. The husband confirmed
that the now-deceased reporter had kept materials at home, but he
had disposed of all of them -- without notice to anyone -- soon
after the reporter’s death.
State.Habeas.Op.36-37.
Thus, the
other transcripts could not be prepared.
The state post-conviction court determined that these missing
transcripts did not entitle Petitioner to habeas relief.
Virginia
rules
would
have
permitted
Petitioner
to
West
submit
statements in place of transcripts during the habeas proceedings,
but Petitioner never invoked those rules.
(citing W. Va. R. Civ. P. 80(e)).
State.Habeas.Op.37-38
During his direct appeal,
8
Petitioner had “a majority of his trial transcript,” and any gaps
in
the
transcript
did
not
preclude
effective
review.
State.Habeas.Op.38-40. In the end, it was the witnesses’ testimony
that drove the case -- and thus the appeal -- and Petitioner had
all that testimony transcribed.
State.Habeas.Op.41.
The Supreme
Court also had “paper copies of the jury charge, jury instructions,
and jury verdict forms” before it.
Id.
In short, “Petitioner
ha[d] to show that the missing portions of the transcript [we]re
prejudicial and impact[ed] his case,” and “[h]e ha[d] failed to do
so.”
State.Habeas.Op.43.
The
state
post-conviction
court
held
that
neither
Petitioner’s transcript-related claims nor any of his many other
claims had merit.
relief.
Id.
4.
State.Habeas.Op.45-46.
It thus denied him any
Petitioner appealed again.
In a memorandum decision in 2020, the Supreme Court of
Appeals again affirmed unanimously.
Pet.App.E1. Petitioner had
once more argued that “the loss of certain portions of the trial
transcript denied petitioner a meaningful appeal in [his direct
appeal].”
record
and
Pet.App.E2.
agreed
The Supreme Court of Appeals reviewed the
with
the
circuit
court.
Pet.App.E2.
It
therefore “adopt[ed] and incorporate[d] the circuit court’s wellreasoned findings and conclusions.”
Pet.App.E2.
denied Petitioner’s petition for rehearing.
The court also
9
5.
While pressing his state habeas petitions, Petitioner
also sought transcript-related relief in separate civil actions.
He
first
filed
a
lawsuit
constitutional
deprivations
County,
Virginia
West
under
at
court
42
the
U.S.C.
hands
§
of
administrators
1983
“alleging
various
McDowell
on
basis
the
of
Plaintiff’s inability to procure portions of his criminal trial
transcript.”
Hicks v. Canterbury, No. 2:13-CV-27830, 2015 WL
6509133, at *1 (S.D.W. Va. Oct. 28, 2015).
A federal district
court dismissed that action because it would have “undermine[d]
the
state
court]
to
exhaustion
requirement
impugn
validity
the
continued confinement.”
Id. at 9.
and
of
require[d]
Plaintiff’s
[the
federal
conviction
and
The “constitutional foundation
for [Petitioner]’s claim” was also “murky.”
Id.
Unhappy with
that result, Petitioner filed for a writ of assumpsit against his
appellate attorney in state circuit court.
That suit settled for
a nominal sum. See Order, Hicks v. Gibson, No. 17-C-408-WS (Taylor
Cnty. (W. Va.) Cir. Ct. Aug. 29, 2018) (reflecting a settlement of
$2,104).
Petitioner also filed disciplinary complaints against
some of his lawyers and the trial judge.
6.
Hicks then pursued federal habeas relief in the U.S.
District Court for the Southern District of West Virginia, filing
a petition under 28 U.S.C. § 2254 in October 2020.
Here again,
Hicks argued that “the lack of transcriptions of certain trial
10
proceedings denied him due process and equal protection of the
law.”
Hicks, 2021 WL 4485002, at *3.
The magistrate judge found it “was not unreasonable for the
[state] circuit court to determine that lack of access to a
complete transcript was not prejudicial.”
Id. at 12.
None of the
missing pieces were particularly critical, none of them pertained
to the arguments he raised on appeal, and Petitioner had not
requested most of the transcripts until after his appeal, anyway.
Id.
Further, a First Amendment claim was a non-starter because
Petitioner had not raised it in state court and the State had not
refused to hand anything over.
Id.
In the end, Petitioner had
“provided no evidence that the alleged omissions from his trial
transcript specifically prejudiced him on appeal,” and “there is
no
constitutional
review.”
The
right
to
a
trial
court
agreed
transcript
on
collateral
Id.
district
with
the
magistrate
judge’s
conclusions in full. Pet.App.B4. It too concluded that Petitioner
had not made the substantial showing of prejudice that he needed
to make to obtain relief under Section 2254.
could
Petitioner
“convert
the
missing
Id. at 12-13.
transcripts
Nor
into
an
ineffective assistance of counsel claim” without showing how the
transcripts were relevant to issues on appeal.
Id. at 13.
And a
gap in some transcripts did not offend his First Amendment rights.
11
That gap was not the State’s fault and the transcripts were equally
unavailable to all.
7.
Id. at 13-14.
Petitioner appealed.
In a brief, unpublished, per curiam opinion, the Fourth
Circuit “den[ied] a certificate of appealability and dismiss[ed]
the appeal.”
Pet.App.A1.
The court’s independent review did not
reveal any basis for an appeal.
Id.
Petitioner’s petition for rehearing.
The court later denied
Pet.App.D1.
ARGUMENT
This petition for certiorari does not warrant the Court’s
review.
Courts have repeatedly explained that Petitioner must
identify how any lack of transcripts prejudiced him.
still has not done so.
Petitioner
Especially given the intensely fact-bound
nature of the questions presented and the highly deferential nature
of habeas review of state-court judgments, this case should come
to its end now.
1.
This
Court
circumstances
require
reviews
the
Court’s
important federal question.
meet
this
standard
if
it
cases
only
involvement
Sup. Ct. R. 10.
presents
unaddressed federal question.
Id.
when
an
to
compelling
settle
an
A petition might
important
but
as-yet-
Or a petition might concern
important federal questions that courts have decided differently
or in ways that conflict with this Court’s precedent.
Id.
Petitioner does not claim any of those circumstances apply
here. The Petition does not implicate any split among the circuits
12
or the state courts of last resort.
Nor does Petitioner suggest
any direct conflict with this Court’s precedents; indeed, he only
cites a handful of those precedents, and they don’t even apply.
Instead,
Petitioner
asks
for
simple
unpublished, per curiam opinion below.
error
correction
of
the
But “error correction ...
is outside the mainstream of the Court’s functions and ... not
among
the
‘compelling
certiorari.”
reasons’ ...
that
govern
the
grant of
Stephen M. Shapiro, et al., Supreme Court Practice
§ 5.12(c)(3) (10th ed. 2013).
It would be especially wrong to engage in unvarnished error
correction in a splitless case when the questions presented concern
factual matters addressed and resolved many times over by other
courts.
At bottom, Petitioner disagrees with the notion that he
had what he needed to make the arguments that he wanted to raise
on direct appeal.
He wants this Court to revisit what transcript
pages he had and when.
See, e.g., Pet.11.
But this Court “do[es]
not grant a certiorari to review evidence and discuss specific
facts.”
United States v. Johnston, 268 U.S. 220, 227 (1925); see
Sup. Ct. R. 10 (“A petition for a writ of certiorari is rarely
granted when the asserted error consists of erroneous factual
findings.”).
Nor does the Court take on cases just to decide what
“inferences [should be] drawn” from the evidence.
Gen. Talking
Pictures Corp. v. W. Elec. Co., 304 U.S. 175, 178 (1938).
So when
a petition “present[s] primarily ... a question of fact, [it] does
13
not merit Court review.”
NLRB v. Hendricks Cnty. Rural Elec.
Membership Corp., 454 U.S. 170, 176 n.8 (1981).
Remember
that
not
Petitioner’s position.
one
single
judge
has
agreed
with
“[U]nder what [the Court] ha[s] called the
‘two-court rule,’ th[is] policy has been applied with particular
rigor when [the trial] court and court of appeals are in agreement
as to what conclusion the record requires.”
Kyles v. Whitley, 514
U.S. 419, 456-457 (1995) (Scalia, J., dissenting) (citing Graver
Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949)).
Here,
though,
it’s
not
just
two
courts
--
four
courts
have
disagreed with Petitioner’s read of the facts and inferences one
might find in this record.
2.
The petition also does not warrant review because it
never engages with the mandatory standards of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”).
“The writ of habeas
corpus is an extraordinary remedy that guards only against extreme
malfunctions in the state criminal justice systems.”
Shinn v.
Ramirez, 142 S. Ct. 1718, 1731 (2022) (cleaned up).
For that
reason, “AEDPA imposes several limits on habeas relief, and [this
Court] ha[s] prescribed several more.”
Id.
These standards and
limits are “intentionally difficult to meet.”
Woods v. Donald,
575 U.S. 312, 316 (2015) (cleaned up).
One of those limits proves to be important here: Petitioner
must show not just that “the state court’s determination was
14
incorrect, but [also] that [the state court’s] determination was
unreasonable -- a substantially higher threshold for a prisoner to
meet.”
Shoop v. Twyford, 142 S. Ct. 2037, 2043 (2022) (cleaned
up).
To show that, Petitioner would need to explain how the state
court
“(1)
contradicted
or
unreasonably
applied
this
Court’s
precedents, or (2) handed down a decision ‘based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.’”
Id. (quoting 28 U.S.C. § 2254(d)).
“This means that a state court’s ruling must be so lacking in
justification
that
there
was
an
error
well
understood
and
comprehended in existing law beyond any possibility for fairminded
disagreement.”
Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (cleaned
up); see also Brown v. Davenport, 142 S. Ct. 1510, 1525 (2022)
(stressing lofty standards that a petitioner must meet to obtain
relief under Section 2254(d)).
And factual determinations made by
state courts are “presumed to be correct.” 28 U.S.C. § 2254(e)(1);
see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Petitioner never engages with any of those standards.
In
fact, the Petition never mentions AEDPA -- so Petitioner “all but
ignore[s] the only question that matters.”
562 U.S. 86, 102 (2011) (cleaned up).
Harrington v. Richter,
Petitioner treats deference
as beside the point.
The statutorily imposed presumptions are
nowhere to be found.
Rather than rely on this Court’s precedents,
Petitioner inappropriately seeks shelter in state law.
See Pet.12
15
(referring to W. Va. Code § 51-7-7); but see Engle v. Isaac, 456
U.S. 107, 121 n.21 (1982) (“[A] mere error of state law ... is not
a denial of due process.” (cleaned up)). He also invokes unrelated
federal statutes. Id. at 13 (referring to the Court Reporter Act);
but see, e.g., Madera v. Risley, 885 F.2d 646, 648 n.1 (9th Cir.
1989) (explaining that the Court Reporter Act “does not apply to
state court proceedings”).
And when he does refer to this Court’s holdings -- as AEDPA
requires him to, White v. Woodall, 572 U.S. 415, 419 (2014) -- he
misquotes words from inapplicable opinions.
He quotes a dissent
from United States v. MacCollom, 426 U.S. 317, 338 (1976), but
cites it as Coppedge v. United States, 369 U.S. 438 (1962).
Pet.11.
See
He quotes from Howard v. Cain, No. 11-CV-1365, 2015 WL
5436918, at *2 (W.D. La. Aug. 6, 2015), a case rejecting a habeas
petitioner’s claim premised on a lack of transcripts, but he cites
it as MacCollom.
See Pet.12.
And he cites the plurality opinion
in Griffin v. Illinois, 351 U.S. 12 (1956), for the idea that a
transcript is necessary for equal access to the courts, Pet.12,
even though Griffin expressly “d[id] not hold ... that [the State]
must purchase a stenographer’s transcript in every case,” 351 U.S.
at 20.
These authorities hardly show a conflict with or an
unreasonable application of clearly established law.
Petitioner
has failed to meet his threshold responsibility to show that no
16
reasonable jurist would agree with the State courts’ views.
The
Court can thus reject the Petition for that reason alone.
3.
These problems aside, Petitioner’s claims lack merit --
further confirming that the Court has no reason to intervene.
a.
“record
This Court has said that criminal defendants deserve a
of
sufficient
completeness”
Washington, 372 U.S. 487, 499 (1963).
on
appeal.
Draper
v.
But lower courts have
uniformly declined to hold “that due process requires a verbatim
transcript of the entire proceedings or that an incomplete record
confers automatic entitlement to relief.” United States v. Savage,
970 F.3d 217, 237 (3d Cir. 2020); see also, e.g., Mitchell v.
Wyrick, 698 F.2d 940, 941 (8th Cir. 1983) (“Mere absence of a
perfect transcript does not necessarily deny one due process of
law.”).
“[T]he record is adequate for full appellate review so
long as it contains the portions necessary to address the alleged
errors below.”
Higginbotham v. Louisiana, 817 F.3d 217, 222 (5th
Cir. 2016) (cleaned up).
And “a record of sufficient completeness
does not necessarily mean a verbatim transcript,” either.
v. Powell, 52 F.4th 1178, 1233 (10th Cir. 2022).
recording the proceedings can work, too.
Menzies
Other ways of
Particularly “when,
through no fault of the State, transcripts of criminal trials are
no longer available because of the death of the court reporter,
some practical accommodation must be made.”
373 U.S. 420, 424 (1963).
Norvell v. Illinois,
For all these reasons, then, “the
17
absence of the jury instruction transcripts is not a per se denial
of his due process right to a fair appeal.”
Bransford v. Brown,
806 F.2d 83, 86 (6th Cir. 1986).
So “when part of a transcript is missing, habeas relief is
warranted only if the petitioner shows prejudice.”
F.4th
at
1234
(collecting
authorities);
see
Menzies, 52
also,
e.g.,
Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir. 2005) (“[T]he
claimant must show specific prejudice to his ability to perfect an
appeal sufficient to rise to the level of a due process violation.”
(cleaned up)); United States v. Hoey, 71 F. App’x 962, 965 (4th
Cir. 2003) (same); United States v. Charles, 313 F.3d 1278, 1283
(11th Cir. 2002) (same); Mullen v. Blackburn, 808 F.2d 1143, 1146
(5th Cir. 1987) (same).
Indeed, even outside the habeas context,
a “prejudice requirement has now been adopted by almost every
circuit
to
consider
the
issue
inaccurate trial transcripts.”
in
the
context
of
missing
or
United States v. Weisser, 417 F.3d
336, 342 (2d Cir. 2005); see also United States v. Carrazana, 70
F.3d 1339, 1343 (D.C. Cir. 1995) (“Many courts have emphasized the
importance of the defendant’s alleging some specific error in the
missing portions of the record.”).
A
defendant
shows
prejudice
by
establishing
at
“colorable need” for the missing part of the transcript.
Horn, 516 F.3d 169, 190-91 (3d Cir. 2008).
least
a
Fahy v.
Put another way,
Petitioner must show how the omitted parts of the transcript left
18
the appellate court unable to “determine whether the [trial] court
committed reversible error.”
United States v. Malady, 960 F.2d
57, 59 (8th Cir. 1992). Mere speculation that the missing portions
might have contained some evidence of reversible error is not
enough.
See, e.g., Winkler v. Parris, 927 F.3d 462, 466-67 (6th
Cir. 2019); Santiago v. Coughlin, No. 96-2229, 1997 WL 32924, at
*2 (2d Cir. Jan. 8, 1997).
Here, the state courts reasonably concluded that Petitioner
had
failed
to
establish
any
transcripts on direct appeal.
prejudice
from
the
“missing”
To be clear, Petitioner received
all the transcripts that his counsel requested on direct appeal
except for the judge’s reading of the jury instructions. So beyond
those instructions, the lower courts reasonably held Petitioner
responsible for his own failure to request any other transcripts
before
appealing.
After
all,
“[p]utting
to
one
side
the
exceptional cases in which counsel is ineffective,” and ignoring
the few instances (not relevant here) in which defendants must
personally make certain key decisions, “the client must accept the
consequences of the lawyer’s decision[s].”
Taylor v. Illinois,
484 U.S. 400, 418 (1988).
Petitioner has identified no specific reversible error that
might arise from the non-provided jury instructions.
He does not
suggest that his counsel objected to any of the instructions when
the trial court gave them.
Cf. United States v. Cadarette, No.
19
86-1230, 1987 WL 37200, at *1 (6th Cir. Apr. 23, 1987) (finding no
prejudice
from
missing
jury-instruction
transcripts
where
“defendant ... made no suggestion of how he might have been
prejudiced”
and
“trial
counsel
indicate[d]
objections on defendant’s behalf”).
that
he
made
no
The Supreme Court of Appeals
had a written copy of the instructions that they consulted; recall
how
the
court
referred
to
the
charge
given
at
the
end
of
Petitioner’s trial in its decision on Petitioner’s direct appeal.
See Pet.App.C10.
The transcript for the jury instructions did not
pertain to the grounds that Petitioner raised in his appeal.
And
Petitioner’s counsel -- who was also one of Petitioner’s two
lawyers at trial -- also did not see any grounds for appealing
from those instructions.
In sum, “there is not even a modicum of
evidence here that the incomplete transcript resulted in actual
prejudice.”
Moore v. Carlton, 74 F.3d 689, 693 (6th Cir. 1996).
The closest Petitioner comes to alleging specific prejudice
is a reference to potential “lesser included instructions” that
Petitioner thinks the trial court should have given but didn’t.
See Pet.7, 11, 13, 14. Petitioner never raised that specific point
in the state proceedings, so the Court could not consider it here.*
See Sexton v. Beaudreaux, 138 S. Ct. 2555, 2560 (2018) (explaining
Petitioner also suggests -- without further elaboration -- that
“the Judge did not instruct the jury on the elements of the crime.”
Pet.13.
But he does not offer anything to support that rather
outrageous assertion, and he never raised that point below, either.
*
20
that
it
was
a
“fundamental
error”
for
a
federal
court
to
“consider[] arguments against the state court’s decision that [the
petitioner] never even made in his state habeas petition”).
But
even if the Court were to consider it, that issue would supply no
prejudice for at least two reasons.
First, Petitioner never explains why missing transcripts were
necessary to make whatever claim he wanted to make.
“All that
would be necessary would be a concession that no such instruction
was given, together with a description of the nature of the
evidence against petitioner, not claimed to be absent here.” Green
v. Scully, 840 F. Supp. 254, 256 (S.D.N.Y. 1993) (rejecting habeas
claim based on omission of transcript that would have purportedly
supported lesser-included argument).
Even without the concession,
Petitioner
the
could
have
looked
to
written
copies
of
the
instructions or some alternative record, just as the state postconviction court recognized.
He did not.
Second, Petitioner never describes why the failure to provide
instructions on some unidentified lesser included offense -- “such
as second degree murder,” Pet.13 -- would amount to legal error.
See Jackson v. Renico, 179 F. App’x 249, 252 (6th Cir. 2006)
(rejecting
habeas
claim
based
on
missing
transcripts
because
“[t]he petitioner made no specific allegation of error”).
“[D]ue
process requires that a lesser included offense instruction be
given only when the evidence warrants such an instruction.” Hopper
21
v. Evans, 456 U.S. 605, 611 (1982).
And though second-degree
murder can constitute a lesser included offense of first-degree
murder under West Virginia law, there still must be “evidence which
would tend to prove such lesser included offense.”
Richardson, 811 S.E.2d 260, 272 (W. Va. 2018).
State v.
Petitioner has
identified no evidence like that, even though he concededly has
transcripts of all the evidence presented at trial.
Nor could he.
This case involved a premeditated, well-planned, and cold-blooded
scheme to kill multiple individuals.
It was not an act of passion
or the like that might justify a lesser included offense.
So
“[t]here was no evidence ‘which would tend to prove’ the lesser
included offense, i.e. that the killing was spontaneous and of a
non-reflective nature.”
And
the
Id.
Petition’s
Thus, no prejudice could arise.
fleeting
reference
to
Petitioner’s
unpreserved First Amendment argument does not change that. Pet.13.
The First Amendment protects access to criminal trials.
See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-78 (1980)
(plurality).
trial.
But here, no one denied Petitioner access to his
Petitioner does not have copies of certain transcripts of
certain parts of his trial because they simply do not exist; the
State did not refuse him anything.
That situation does not
implicate the First Amendment, particularly when no prejudice
results.
See, e.g., Saunders v. Phila.
Dist. Att’y’s Off., 546
F. App’x 68, 72 (3d Cir. 2013) (finding that First Amendment claim
22
failed where the defendant could not “establish that any lost or
rejected claims were non-frivolous or arguable”).
b.
Probably seeing that his claim for lack of transcripts
on appeal does not work on its own, Petitioner sometimes seems to
argue that he received ineffective assistance because his lawyer
did not seek out more transcripts.
Pet.10. But that effort cannot
succeed.
Petitioner does not mention the relevant standards for an
ineffective-assistance-of-counsel claim.
A defendant does not
have “a right to an attorney who performs his duties mistakefree.”
Weaver v. Massachusetts, 582 U.S. 286, 300 (2017) (cleaned
up).
“[C]ounsel should be strongly presumed to have rendered
adequate assistance.”
Cullen v. Pinholster, 563 U.S. 170, 189
(2011).
To defeat that presumption, a defendant “must show that
counsel
failed
circumstances.”
to
act
reasonabl[y]
considering
all
the
Id. (cleaned up); see also Maryland v. Kulbicki,
577 U.S. 1, 2 (2015) (explaining that counsel’s error must be “so
serious that he no longer functions as counsel” (cleaned up)).
If
defendant can establish this deficient performance, then he still
must show prejudice, too.
In particular, he must “show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Cullen, 563 U.S. at 189.
And a “reasonable probability” is a
“substantial,” not just a “conceivable, likelihood of a different
23
result.”
Shinn v. Kayer, 141 S. Ct. 517, 523 (2020).
These
standards and Section 2254(d) “are both highly deferential, and
when the two apply in tandem, review is doubly so.”
562 U.S. at 105 (cleaned up).
Harrington,
Given that extreme deference,
“federal courts are to afford both the state court and the defense
attorney the benefit of the doubt.”
Woods v. Etherton, 578 U.S.
113, 117 (2016) (cleaned up).
The state courts reasonably rejected Petitioner’s ineffective
assistance claim.
Other than insisting that he asked for a
complete transcript and didn’t get one, Petitioner never explains
with any specificity why his counsel’s choice not to order certain
specific pages fell below reasonable professional norms.
That
could have well been enough to reject the ineffective-assistance
argument.
Cf. Draper, 372 U.S. at 495 (recognizing how “part or
all of the stenographic transcript in certain cases will not be
germane to consideration of the appeal” such that a defendant may
not need them).
But worse, as the state courts recognized, the arguments about
prejudice are even vaguer.
Again, Petitioner did not suffer
prejudice from the absence of any transcripts on jury instructions.
And as for the rest of it, Petitioner can suggest only that other
unspecified but meritorious claims might be hiding within.
See
Pet.12 (referring to “all the errors[,] including but not limited
to the jury instruction errors”); Pet.14 (alluding to “other errors
24
remembered”).
“Conclusory” arguments like these ones are not
enough to show prejudice.
Nguyen v. Archuleta, 369 F. App’x 889,
894 (10th Cir. 2010); see also, e.g., Dugger v. White, No. 9616473, 1998 WL 10396, at *1 (9th Cir. Jan. 12, 1998); Gruszie v.
United States, No. 16369, 1991 WL 127709, at *1 (9th Cir. July 15,
1991); cf.
assertion
Santiago,
that
there
1997 WL
might
32924,
possibly
at *2
(“[A]
be
appealable
an
perfunctory
issue
concerning the denial of his competency motion in the missing
transcripts is insufficient to satisfy the requisite showing of
prejudice.”).
They do not even meet the “heightened pleading
requirements” that apply to habeas petitions.
McFarland v. Scott,
512 U.S. 849, 856 (1994).
When it comes to prejudice on his ineffective-assistance
claim, the most that Petitioner can muster is a reference to a
letter that one of his trial lawyers sent to his other trial
counsel
recounting
certain things
Pet.App.F1.
“thoughts”
the trial
from
court
Petitioner’s
supposedly
said
family
about
to the
jury.
Here again, this fourth-hand account is too sparse to
establish prejudice from the missing transcripts, especially when
Petitioner offers no legal argument to go with them.
And in the
end, obtaining the transcripts of these comments would not have
made any difference.
Counsel was obviously aware of the comments
-- having received the letter -- and made a strategic decision not
to raise them on appeal.
Counsel was right.
25
The statements paraphrased in the letter are not the sort
that warrant reversal under West Virginia law.
One was just a
statement that the court expected trial to finish by a certain
day.
See, e.g., State v. R.T., No. 11-0468, 2012 WL 2915020, at
*3 (W. Va. Feb. 14, 2020) (holding that the circuit court’s
“numerous references to time” did not impermissibly coerce the
jury); State v. Mayle, No. 11-0562, 2012 WL 2914271, at *3 (W. Va.
Feb. 13, 2012) (holding that the circuit court did not influence
or rush the jury by expressing belief that trial would end by a
certain day).
Another was a statement that no one would disturb
the jury unless they summoned the bailiff by knocking on the door.
See, e.g., State v. Pannell, 225 W. Va. 743, 750 (W. Va. 2010)
(holding that the court’s comments that jurors would stay as long
as necessary was not coercive).
So any failure on counsel’s part
in not asking to transcribe those comments was immaterial and nonprejudicial.
Petitioner’s claim for ineffective assistance of counsel thus
fails.
c.
that
a
Petitioner also says -- without further development -lack
of
certain
transcripts
caused
him
to
lose
“his
Constitutional Right ... to a meaningful Writ of Habeas Corpus.”
Pet.9; see also Pet.10 (“Petitioner could not compile a sufficient
and complete ... collateral attack either.”).
fails, too.
This last argument
26
Petitioner maintains that his “constitutional right to a
collateral attack” was undermined because he did not have all the
transcripts he wanted.
Pet.12.
If he means to refer to state
proceedings, he is mistaken: no right to collaterally attack a
conviction in state courts exists.
“State collateral proceedings
are not constitutionally required as an adjunct to the state
criminal proceedings.” Murray v. Giarratano, 492 U.S. 1, 10 (1989)
(plurality op.); see also Lackawanna Cnty. Dist. Att’y v. Coss,
532 U.S. 394, 402 (2001) (noting that there is “no constitutional
mandate”
for
States
to
afford
post-conviction
relief);
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (“States have no
obligation to provide this avenue of relief.”).
Thus, as to the
state
of
proceedings,
the
fundamental
premise
Petitioner’s
argument is wrong.
Nor did the lack of transcripts offend any of Petitioner’s
rights as to his federal post-conviction challenge.
Petitioner
“has no constitutional right to a transcript to prepare for a postconviction proceeding.”
Hays v. Newsom, 3 F. App’x 270, 271 (6th
Cir. 2001); see also Bush v. Sec’y, Fla. Dep’t of Corr., 888 F.3d
1188, 1197 (11th Cir. 2018) (same); Randolph v. Taylor, 69 F. App’x
824, 825 (9th Cir. 2003) (same); Ruark v. Gunter, 958 F.2d 318,
319 (10th Cir. 1992) (same).
Indeed, as best the State can tell,
no court anywhere has ever held that a criminal defendant has a
right to obtain the transcript of his criminal trial to support
27
his federal post-conviction challenge.
odd
to
recognize
such
a
right
in
It would be particularly
this
case,
given
that
no
“violation of the Due Process or Equal Protection Clause” occurs
where, as here, a transcript is missing “due to the death of the
court reporter” and the defendant had counsel at trial and on
appeal.
Norvell, 373 U.S. at 423; Rickard v. Burton, 2 F. App’x
469, 470 (6th Cir. 2001) (“[N]o constitutional violation occurs
when a transcript does not exist due to the death of the court
reporter and, consequently, the transcript is unavailable to both
sides.”).
And even if some right to transcripts during post-conviction
proceedings did exist, Petitioner would still have to meet the
challenge of establishing prejudice.
point, Petitioner can’t do so.
As should be clear by this
The transcripts did not contain
evidence of potentially colorable claims.
Petitioner brought the
only potential claims he had during his direct appeal, and those
claims failed.
reporter
to
He cannot use the unfortunate death of a court
transform
immaterial
transcript
pages
into
a
meritorious post-conviction challenge.
*
*
*
*
In total, none of Petitioner’s claims had any merit.
So even
if the Court could look past the many threshold reasons to refuse
this prejudice, the merits would not warrant granting the petition
for certiorari.
28
CONCLUSION
The Court should deny the Petition.
Respectfully submitted.
PATRICK MORRISEY
Attorney General
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Principal Deputy Solicitor
General
JUNE 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.