Ferguson v. West Virginia Board of Parole
Filing
26
Memorandum Opinion and Order Adopting Report and Recommendation 24 , Granting Respondent's Motion for Summary Judgment 14 , Dismissing 1 2254 Petition and Denying Certificate of Appealability. The 2254 Petition is dismissed, with prejudice , and this case is stricken from the Court's docket. Signed by District Judge Irene M. Keeley on 5/10/13. Modified on 5/13/2013 to reflect that a copy was not mailed via cert. mail to Petitioner, as the Petitioner is a represented party. NEF regenerated (mh).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
FREDERICK K. FERGUSON,
Petitioner,
v.
//
CIVIL ACTION NO. 1:12CV114
(Judge Keeley)
WEST VIRGINIA BOARD OF PAROLE,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 24], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 14], DISMISSING
§ 2254 PETITION AND DENYING CERTIFICATE OF APPEALABILITY
Pending
before
the
Court
is
Frederick
K.
Ferguson’s
(“Ferguson”) Petition for a Writ of Habeas Corpus, filed pursuant
to 28 U.S.C. § 2254. (Dkt. No. 1). The respondent’s Motion for
Summary Judgment (dkt. no. 14) is fully briefed, and the Court has
reviewed
the
Magistrate
Judge’s
Opinion
and
Report
Recommendation (“R&R”) on the matter. (Dkt. No. 24).
and
For the
reasons that follow, the Court ADOPTS the R&R (dkt. no. 24) in its
entirety, grants the defendant’s Motion for Summary Judgment (dkt.
no. 14), and DISMISSES the petition WITH PREJUDICE.
I.
In 2008, an Ohio County, West Virginia jury convicted Ferguson
of voluntary manslaughter for the shooting death of Maurice Sears
(“Sears”). (Dkt. No. 1-8 at 8, 10, 12). Ferguson was sentenced to
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
fifteen
years
of
incarceration.
(Dkt.
No.
1-7
at
6).1
On
February 17, 2011, the West Virginia Supreme Court of Appeals
affirmed his conviction and sentence. (Dkt. No. 1-3 at 5). On
October 3, 2011, the Supreme Court of the United States denied
Ferguson’s writ of certiorari. (Dkt. No. 1-2).
On July 16, 2012, Ferguson timely filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 with this Court, see id.
§ 2244(d), in which he raised an issue argued previously on direct
review. See Picard v. Connor, 404 U.S. 270, 275 (1971). The Court
referred this matter to United States Magistrate Judge James
Seibert for initial screening and a report and recommendation in
accordance with LR PL P 2. Pursuant to the Court’s order (dkt. no.
3), the West Virginia Board of Parole (“the WVBOP”) responded (Dkt.
No. 13) and also moved for summary judgment on the petition. (Dkt.
No. 14).
Ferguson responded to the motion for summary judgment on
January 2, 2013. (Dkt. No. 20).
On February 6, 2013, Magistrate
Judge James Seibert issued an R&R in which he recommended that the
Court grant summary judgment to the WVBOP and dismiss the petition
with
prejudice.
(Dkt.
No.
24).
After
Ferguson
filed
timely
objections to the R&R (Dkt. No. 25), the Court conducted a de novo
1
While Ferguson is currently on parole, he is still “in
custody” for habeas purposes. Jones v. Cunningham, 371 U.S. 236, 243
(1963).
2
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
review of the matter, 28 U.S.C. § 636(b)(1), and now concludes that
Ferguson’s objections are without merit.
II.
Elizabeth
Gorayeb
(“Gorayeb”)
maintained
romantic
relationships with both Ferguson and Sears. (Dkt. No. 1-3, at 1).2
Angered by Ferguson’s involvement with Gorayab, Sears threatened to
kill Ferguson and his family. Id.
After receiving these threats,
Ferguson, accompanied by his friend, Robert Hodge (“Hodge”), met
with Sears. Id. During this meeting, Sears was on foot, while
Ferguson remained in his car. Id. At some point, Sears kicked
Ferguson’s car door. Id. Ferguson and Sears struggled, a gun
appeared, and a shot was fired that struck and killed Sears. Id.
Authorities never recovered the gun. Id.
The State sought to indict Ferguson for first-degree murder.
Id. Officer Howard Keith Brown (“Officer Brown”), the state’s sole
witness before the grand jury (dkt. no. 1 at ¶7),
testified that
Ferguson had taken a gun to his meeting with Sears. (Dkt. No. 1-3
at 2). A grand juror asked Officer Brown, “You said he [Ferguson]
went and obtained the gun. Was there a witness that he went and
2
As Ferguson has not disputed the validity of factual findings
made by the West Virginia Supreme Court of Appeals as to the conduct
underlying his conviction, 28 U.S.C. 2244(e)(1), the Court relies on them
to present this recitation of the facts of Ferguson’s offense and trial,
unless otherwise noted.
3
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
obtained the gun?” Id. at n.2. Officer Brown responded that he did
not “know where he [Ferguson] got the gun. We have no witness to
that.” Id. Hodge, however, had previously told police that it was
Sears who possessed the gun when he met with Ferguson. Id.
At trial, Ferguson’s attorney moved to cross-examine Officer
Brown about this discrepancy. The court conducted an in camera
hearing on the issue, during which defense counsel explained that
the purpose of the cross-examination was to attack Officer Brown’s
credibility: “Judge, I want to ask him if he misled the grand jury,
and if he’s told lies under oath on prior occasions.” (Dkt. No. 144
at
28).
Further
in
camera
questioning
by
defense
counsel
established that Officer Brown had not reviewed the entire case
file prior to testifying before the grand jury.3 Id. at 29. In
summing up his inquiry, defense counsel stated: “So are you telling
us that you answered a grand juror’s [sic] question under oath,
knowing how important it was, with reckless disregard to whether
your answer was truth or not?” Id. Officer Brown responded, “I
guess, yes.” The court then inquired of Officer Brown: “At the time
that you answered the question[, ‘]No, we don’t know where he got
3
Defense counsel asked, “Now, at the time, the police files
indicated that Mr. Hodge had been interviewed and had indicated that Mr.
Sears produced a gun at the side of the vehicle himself, is that
correct?” Officer Brown responded, “I did not review that interview. I
can’t answer that.” (Dkt. No. 14-4 at 29).
4
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
the gun. We have no witness
to that[,’] was that a truthful answer
insofar as you are concerned?” Id. Officer Brown confirmed that it
was. The trial court then denied Ferguson’s motion, foreclosing
cross-examination as to Officer Brown’s grand jury testimony. Id.
The
jury
subsequently
convicted
Ferguson
of
voluntary
manslaughter. Ferguson appealed his conviction on numerous grounds,
including those presented in the instant habeas petition. In
dismissing Ferguson’s appeal of the trial court’s ruling as to
Officer Brown’s grand jury testimony, the West Virginia Supreme
Court of Appeals explained:
Upon review by this Court, we find that Officer Brown’s
statement was not untruthful, that the trial court did
not abuse its discretion in disallowing cross-examination
on that issue at trial, and that [Ferguson’s] rights were
not thereby prejudiced. Moreover, even if an abuse of
discretion in this evidentiary ruling had occurred, the
State correctly emphasizes that reversal is not required
where substantial rights are not affected. The underlying
information [Ferguson] sought to obtain concerning
conflicting evidence on the issue of the gun was
introduced at trial through the testimony of Mr. Hodge.
The jury was ultimately presented with that evidence.
(Dkt. No. 1-3 at 2).
III.
A.
Ferguson argues that the trial court’s ruling violated his
Sixth Amendment right to confront witnesses against him. As a state
prisoner attacking the validity of his conviction or sentence,
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FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
Ferguson is subject to the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). “As amended by AEDPA, 28 U.S.C. §
2254 sets several limits on the power of a federal court to grant
an application for a writ of habeas corpus on behalf of a state
prisoner.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
Where, as in Ferguson’s case, a claim has been “adjudicated on the
merits in State court proceedings,” a reviewing federal court shall
grant habeas relief only where the state court decision
(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).
A petition triggers AEDPA’s ‘contrary to’ language only where
the state court “arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law” or “confronts facts
that are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to [the Supreme Court].”
Williams v. Taylor, 529 U.S. 362, 405 (2000). Alternatively, a
petition triggers AEDPA’s ‘unreasonable application’ language only
where
the
state’s
application
of
Supreme
Court
precedent
is
“objectively unreasonable.” Renico v. Lett, 130 S.Ct. 1855, 1862
6
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
(2010). A federal court may not disturb the sound judgment of the
state court and find “an unreasonable application of federal law
unless the state court’s decision lies well outside the boundaries
of permissible differences of opinion.” Tice v. Johnson, 647 F.3d
87, 108 (4th Cir. 2011) (internal quotation marks omitted).
Finally, federal courts are to defer to the factual findings
of the state court, unless the petitioner rebuts those findings
with
clear
and
convincing
evidence.
Id.
§
2254(e)(1).
“The
deference required by § 2254(d) applies even when the state court
summarily denied relief instead of providing a written opinion
explaining its reasoning.” Jones v. Seifert, 808 F. Supp. 2d 900,
918 (S.D.W. Va. 2011) appeal dismissed, 467 F. App’x 209 (4th Cir.
2012) (citing Woodford v. Visicotti, 537 U.S. 19, 24 (2002)). In
all,
AEDPA’s
standard
is
“difficult
to
meet.”
Harrington
v.
Richter, 131 S.Ct. 770, 786 (2011).
B.
Summary
documents,
judgment
is
electronically
declarations,
stipulations
appropriate
stored
.
.
where
the
information,
.,
admissions,
“depositions,
affidavits
or
interrogatory
answers, or other materials” show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed R. Civ. P. 56(c)(1)(A), (a). When ruling on
a motion for summary judgment, the Court reviews all the evidence
7
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
“in the light most favorable” to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
and
of
establishing
the
nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence
must
be
such
that
a
rational
trier
of
fact
could
reasonably find for the nonmoving party. Id. at 248–52.
IV.
A.
With those standards in mind, the Court turns to Ferguson’s
argument that the trial court violated his Sixth Amendment rights
by limiting the scope of his cross-examination of Officer Brown.
“The
Confrontation
Clause
of
the
8
Sixth
Amendment
guarantees
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
criminal
defendants
the
opportunity
for
effective
cross-examination.” United States v. Patterson, 406 F. App’x 773,
778 (4th Cir. 2011) cert. denied, 131 S. Ct. 2893 (U.S. 2011)
(citing Davis v. Alaska, 415 U.S. 308, 315 (1974)). “It does not,
however, confer the right to cross-examine ‘in whatever way, and to
whatever extent, the defense might wish.’” Id. (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986)).
“[T]rial judges retain
wide latitude insofar as the Confrontation Clause is concerned to
impose
reasonable
concerns
about,
limits
among
on
other
such
cross-examination
things,
harassment,
based
on
prejudice,
confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.” Van Arsdall, 475 U.S.
at 679.
Moreover, the purpose of the foreclosed cross-examination
matters. “[T]he Supreme Court has held that a defendant presents a
constitutional violation ‘by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby to expose to the jury the facts from which jurors ... could
appropriately draw inferences relating to the reliability of the
witness.’” United States v. Hill, 322 F.3d 301, 304 (4th Cir. 2003)
(quoting Van Arsdall, 475 U.S. at 680). In other words, “to prove
that the exclusion of the evidence was unconstitutional, the
9
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
defendant must show that his evidence went directly to the issue of
bias of the witness, or motive of the witness to fabricate.” Id. In
sum, AEDPA notwithstanding, the defendant’s burden is still heavy.
As
the
Fourth
Circuit
has
observed,
“[i]n
cases
involving
violations of a defendant’s rights under the Confrontation Clause,
a reviewing court will not reverse a conviction based on improper
limitation
during
cross-examination
so
long
as
the
error
is
harmless beyond a reasonable doubt.” United States v. Armstrong,
494 Fed. App’x. 297, 298 (4th Cir. 2012) (citing United States v.
Turner, 198 F.3d 425, 430 n.6 (4th Cir. 1999)).
B.
The WVBOP first argues that, under AEDPA’s ‘contrary to’
language, the cases cited by Ferguson are not on all fours with the
facts of his case, and thus do not establish that the trial court’s
ruling was contrary to one reached by the Supreme Court. See
Williams, 529 U.S. at 405. It next argues that Brown was not a key
witness, and thus this case is distinguishable from cases such as
Alford v. United States, 282 U.S. 687 (1932), which dealt the with
the Sixth Amendment right to cross-examine an important government
witness. The WVBOP also argues that Brown’s testimony was not
untruthful, and that a trial court’s refusal to permit an attack on
general credibility via cross-examination, as was proposed by
Ferguson’s counsel, does not violate the Sixth Amendment. Finally,
10
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
the WVBOP argues that the discrepancy between Brown’s grand jury
testimony and the record is irrelevant, and that, even assuming a
violation of the Sixth Amendment occurred, such error was harmless.
In response, Ferguson points to five Supreme Court cases that
he contends are “controlling”, and thus satisfy AEDPA’s restrictive
standards.4 He also asserts that Brown testified in “reckless
disregard for the truth,” and assails the West Virginia Supreme
Court of Appeals’ (and, presumably, the WVBOP’s) characterization
of Brown’s testimony as “not untruthful.” Finally, Ferguson argues
that, by forbidding cross-examination of Brown concerning his grand
jury testimony, the trial court committed an error much greater
than harmless.
C.
The Court turns first to whether Ferguson’s petition satisfies
the exacting standards of AEDPA. In other words, has Ferguson shown
that the West Virginia Supreme Court of Appeals’ decision was
contrary to a decision of the United States Supreme Court, or an
unreasonable application of such a decision?
First, the West Virginia Supreme Court of Appeals’ conclusion
that the trial court did not violate Ferguson’s Sixth Amendment
4
Those cases are: Delaware v. Van Arsdall, 475 U.S. 673 (1986);
Davis v. Alaska, 415 U.S. 308 (1974); Smith v. Illinois, 390 U.S. 129
(1968); Pointer v. Texas, 380 U.S. 400 (1965); and Alford v. United
States, 282 U.S. 687 (1931).
11
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
rights is not contrary to a decision by the Supreme Court. As that
Court has recognized, trial judges retain wide discretion to place
reasonable limits on cross-examination. See Van Arsdall, 475 U.S.
at 679. The West Virginia Supreme Court of Appeals concluded that,
in Ferguson’s case, the trial court had acted within its discretion
when
it
disallowed
cross-examination
on
Brown’s
grand
jury
testimony. Thus, its conclusion is in line with, and not opposite
to, that of the Supreme Court in Van Arsdall, id.
Second, Ferguson has not pointed to a Supreme Court decision
that is factually on all fours with his own. Instead, he relies on
cases such as Alford v. Texas that address the Sixth Amendment
right to cross-examination generally. Alford, for example, dealt
with precluded questions on cross-examination as to the witness’s
residence. 282 U.S. 687 (1931). Pointer v. Texas, on the other
hand, dealt with the introduction of prior testimony of a witness
whom the petitioner had been unable to cross-examine at the time.
380 U.S. 400 (1965). Smith v. Illinois dealt with cross-examination
as to a key witness’s name and address. 390 U.S. 129 (1968). Davis
v. Alaska dealt with inquiry as to the witness’s probationary
status. 415 U.S. 308 (1974). Finally, Delaware v. Van Arsdall dealt
with cross-examination about any deal made by the witness with the
prosecution. 45 U.S. at 676. These cases are not “materially
indistinguishable” from the facts in Ferguson’s case. Indeed, none
12
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
deals with the refusal to allow cross-examination as to a law
enforcement officer’s grand jury testimony – perjured or otherwise.
As such, under AEDPA, they cannot satisfy the “contrary to” prong.
Moreover, Ferguson has not shown that the decision of the West
Virginia Supreme Court of Appeals was unreasonable. A trial judge
may,
in
his
discretion,
impose
reasonable
limits
on
cross-
examination. Here, the trial judge did so only after hearing
counsel’s argument and pursuing his own inquiry of Officer Brown.
The trial judge also permitted cross-examination of Officer Brown
on numerous other topics, including the preservation of evidence.
Thus, the trial court did not foreclose cross-examination of
Officer Brown on all topics. Cf. United States v. Jordan, 466 F.2d
99, 101 (4th Cir. 1972) (“the clearest violation of the . . . right
of confrontation is where the defense is not allowed to examine the
prosecution witnesses at all”). The decision of the West Virginia
Supreme Court of Appeals therefore does not “lie[] well outside the
boundaries of permissible differences of opinion.” Tice v. Johnson,
647 F.3d 87, 108 (4th Cir. 2011) (internal quotations omitted).
D.
AEDPA’s high evidentiary threshold notwithstanding, Ferguson’s
claim of a Sixth Amendment violation fails for two additional
reasons. First, in his objections to the magistrate judge’s R&R,
Ferguson argues that the purpose of the proposed cross-examination
13
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
of Brown as to his grand jury testimony was to “expose the
irrationality of the State’s case and the irrationality with which
it had been pursued” (dkt. no. 25 at 8), and to illustrate a farreaching effort by the State of West Virginia to oppress him. (Id.
at 9-11).
Neither
of
those
purposes
is
sufficient
to
establish
a
violation of the Sixth Amendment. Ferguson must show that “his
evidence went directly to the issue of bias of the witness, or
motive of the witness to fabricate.” Hill, 322 F.3d at 304. While
Brown’s failure to familiarize himself with the case file prior to
testifying to the grand jury might impugn his general credibility,
it does not go directly to the issue of bias. Rather, such reckless
testimony suggests that, generally, Brown lacked credibility. As
such, foreclosure of cross-examination on the subject does not
violate the Sixth Amendment.
Second,
even
assuming
a
violation
of
Ferguson’s
Sixth
Amendment rights did occur, the question is whether that violation
had a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993); Richmond v. Polk, 375 F.3d 309 (4th Cir. 2004). “Under this
standard, habeas petitioners may obtain plenary review of their
constitutional claims, but they are not entitled to habeas relief
14
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
based on trial error unless they can establish that it resulted in
‘actual prejudice.’” Brecht, 507 U.S. at 637.
Here, Ferguson cannot meet that high evidentiary standard.
Insofar as he wished to cross-examine Brown about his grand jury
testimony to establish sloppy police work, surely Brown’s admission
that Sears’ hands were not ‘bagged’, arguably fouling gunshot
residue stains, was equally effective. (Dkt. No. 14-4 at 27). More
fundamentally, Brown testified at trial that he had not reviewed
the case file for two years, making plain for the jury that his
testimony rested on a somewhat shaky recollection. Id. To the
extent that Ferguson sought to cross-examine Brown to counter the
conclusion that it was Ferguson who brought the gun to his meeting
with Sears, and thus intended to kill Sears, Hodge, Ferguson’s
companion, testified at trial that Sears brought the gun to the
meeting. (Dkt. No. 14-4 at 651-52). In other words, even “assuming
the
damaging
potential
of
the
cross-examination
were
fully
realized,” Van Arsdall, 475 U.S. at 684, the cross-examination of
Brown
was
either
unnecessary
or
repetitive.
Thus,
the
Court
concludes beyond a reasonable doubt that any error the trial court
may have committed as to Ferguson’s opportunity to cross-examine
Brown was harmless.
15
FERGUSON V. WVBOP
1:12CV114
MEMORANDUM OPINION & ORDER
E.
In conclusion, for the reasons stated above, the Court:
1.
ADOPTS the R&R in its entirety (dkt. no. 24);
2.
GRANTS the defendant’s motion for summary judgment (dkt. no.
14);
3.
DISMISSES the instant § 2254 petition WITH PREJUDICE; and
4.
ORDERS that this case be stricken from the Court’s docket.
Finding no issue of constitutional merit upon which reasonable
jurists
might
differ,
the
Court
DENIES
a
certificate
of
appealability in this matter. See Rule 11(a), Rules Governing
Section 2254 and 2255 Cases.
It is so ORDERED.
The Court directs the Clerk to remove this case from the
active docket, and to transmit copies of this Order to counsel of
record.
Dated: May 10, 2013
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
16
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