O'Dell v. Plumley
Filing
78
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 66 AND DENYING AND DISMISSING AMENDED PETITION WITH PREJUDICE DKT. NO. 54 . Court ADOPTS the R&R Dkt. No. 66 ; GRANTS the respondents motion for summary judgment Dkt. No. [ 58]; GRANTS ODells motion for leave to file a 19-page objection Dkt. No. 71 ; GRANTS ODells motion for leave to file a 4-page reply to the respondents response to his objections Dkt. No. 73 ; OVERRULES ODells objections Dkt. No. [71-1]; and DENIE S and DISMISSES WITH PREJUDICE ODells Amended Petition Dkt. No. 54 . Court directs the Clerk to enter a separate judgment order. Court finds that ODell has not made the requisite showing, and DENIES a certificate of appealability. Signed by District Judge Irene M. Keeley on 7/11/2017. (Copy counsel of record via CM/ECF, Copy Pro Se Petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/11/2017: # 1 Certified Mail Return Receipt) (jmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMOTHY O’DELL,
Petitioner,
v.
//
CIVIL ACTION NO. 1:14CV73
(Judge Keeley)
MARVIN PLUMLEY,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
Now pending is the amended petition for habeas corpus pursuant
to 28 U.S.C. § 2254 (“Amended Petition”) filed by the petitioner,
Timothy O’Dell (“O’Dell”) (Dkt. No. 54). In 2006, O’Dell was
convicted of first-degree murder in the Circuit Court of Berkeley
County, West Virginia (“Circuit Court”), after giving a statement
to investigators in which he confessed his involvement. He now
contends that jury instructions regarding the voluntariness of his
confession violated his Fifth and Fourteenth Amendment rights.
Because no clearly established federal law requires West Virginia
to submit this question to the jury, the Court concludes that
O’Dell is not entitled to relief. It thus DENIES and DISMISSES WITH
PREJUDICE the Amended Petition.
I. BACKGROUND
A.
Criminal Trial and Direct Appeal
On August 24, 2005, while conducting a welfare check, members
of the Berkeley County Sheriff’s Department found Debbie Bivens
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
(“Bivens”) shot dead on her bedroom floor.1 Although Bivens’s home
was locked, the bedroom window had been broken from the outside.
Next to Bivens’s body, Deputy Cpl. Brendan Hall located a .380
caliber
handgun
and
a
.40
caliber
shell
casing.
Officers
immediately identified Benny Brookman (“Brookman”), Bivens’s former
paramour, as a prime suspect.
The next day, Ramsey Turner (“Turner”), an acquaintance of
O’Dell, read about Bivens’s death in the local newspaper and
decided to contact the Sheriff’s Department. After confirming that
Bivens had been shot with a .40 caliber handgun, Turner informed
investigators that O’Dell had shown him such a weapon loaded with
hollow point bullets several days before Bivens’s death. According
to Turner, O’Dell had shown him the gun after Turner declined his
offer to make $10,000 by picking him up at a particular location on
Route 51 and taking him home at 3:15 a.m. that Monday morning.
The information that Turner provided made O’Dell a prime
suspect, and Deputy K.C. Bohrer went to his place of employment
that same day. O’Dell arrived at work almost simultaneously, and
Deputy
Bohrer
initiated
a
traffic
1
stop.
After
removing
both
The Court’s recitation of the underlying facts is taken from
the Circuit Court’s Final Order denying O’Dell’s first state habeas
petition (Dkt. No. 58-11), as well as O’Dell’s brief on direct
appeal (Dkt. No. 58-3).
2
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
occupants from the vehicle, Deputy Bohrer handcuffed and searched
O’Dell before releasing him and advising him of his rights. O’Dell
then voluntarily agreed to accompany deputies to the station for an
interview. Upon arrival, O’Dell executed a written waiver of his
Miranda
rights
and
proceeded
to
make
a
videotaped
statement
implicating himself as an accomplice in Bivens’s murder.2 More
particularly, O’Dell admitted that Brookman hired him to drive an
unknown person to Bivens’s house and break out her bedroom window.
He adamantly denied actually shooting Bivens, blaming the murder on
the unknown individual. Following the interview, investigators
arrested O’Dell for first-degree murder.
On August 31, 2005, police found Brookman’s decomposing body
shot and hanging from a tree stand in Maryland. Nearby, police
found his locked truck, which contained a handwritten suicide note,
including the following:
yea I was Going to pay Timmy Odell to kill Debbie for
50.000 Gave him $8.000 still owed him $42.000 he called
me wed August 24, 2005 said Job was Done . . . Timmy
Odell aslo vandalized Her cars 2 years ago for $2000
On February 21, 2006, a grand jury in Berkeley County, West
Virginia, indicted O’Dell for first-degree murder and conspiracy to
2
The record includes a full transcript of this approximately
two-hour videotape (Dkt. No. 58-30).
3
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
commit murder. The Circuit Court held several pretrial hearings to
address the admissibility of O’Dell’s statement and Brookman’s
suicide note, both of which it ultimately found admissible.
At a hearing before the Circuit Court on September 15, 2006,
O’Dell’s
counsel
challenged
the
“emotional
or
psychological”
pressures of O’Dell’s interview, even though he conceded, “I don’t
think that my client’s will was ever overborn[e]” (Dkt. No. 58-25
at 7-8). After eliciting testimony from Deputy Bohrer, defense
counsel stated, “Judge, I don’t have a leg to stand on after that
testimony. No one is going to find more important–-no appellate
court is going to find, I don’t believe, this wasn’t a voluntary
statement.”
Id.
at
22.
He
further
acknowledged
that
the
investigators had done nothing to “overcome [O’Dell’s] earnest
resistence” or to promise leniency, but he nonetheless asked the
Circuit Court to review some portions of the interview transcript.
Id. at 23. After a recess during which it reviewed the transcript,
the Circuit Court concluded, “I don’t see where there’s any action
on behalf of the State which is such that would overcome someone’s
earnest resistance so as not to give a statement or pulls someone
to give a statement against their will.” It thus ruled that
O’Dell’s statement was voluntary and admitted it. Id. at 38.
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
The case proceeded to trial on September 26, 2006. When the
Circuit Court charged the jury at the start of the third day,
September 28, 2006, it included the following instruction:
The Court instructs the jury that under the law of this
state the confession or statement against interest
offered in evidence by the State may be considered by the
jury in determining the guilt or innocence of the
defendant of the crime charged in this case only if the
jury believes that the State has proved by a
preponderance of the evidence that such statement was
freely and voluntarily made without threat, coercion,
promise or reward, and that if you do not believe that
the State has met this burden of proof, it is your duty
to disregard such statement entirely.
(Dkt. No. 58-29 at 12-13).
During deliberations, this topic prompted several questions
from the jury. The jury first asked, “when the defendant signed an
agreement to the free and voluntary statement prior to the actual
interrogation, at what point does the coercion invalidate the
statement?” Id. at 77. The Circuit Court answered this question as
follows:
Please be seated. Ladies and gentlemen of the jury, I’ve
received your question and I think the best way I can
answer that is to say that any portions of the statement
that you find were not freely and voluntarily made
without threat, coercion, promise or reward may not be
considered by you. Remember that it’s the burden of the
State to prove by a preponderance of the evidence which
is a lesser standard than reasonable doubt, it’s more
likely than not, has to be proved. State bears the burden
of proving to you that the statement or any portions
thereof were made freely and voluntarily without threat,
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
coercion, promise or reward and that burden is by a
preponderance of the evidence. So anything that you find
in that statement that you feel was not made freely and
voluntarily without threat, coercion, promise, or reward
you must not consider.
Clear it up any? Okay, if I get one head nodding yes,
that’s good. You have to go back and discuss it all. It
seems as if the question is asking when or if and does it
knock out the whole statement or not and things like
that, and the statement should be taken as a series of
statements and any portion thereof that you find was not
the product of freely and voluntarily made without
threat, coercion, promise, or reward then you must not
consider that. Got it? I will send you all back.
Id. at 85.
In
response
to
two
additional
jury
questions
concerning
analysis of O’Dell’s statement, the Court explained as follows:
. . . Any portions of the statement that have not been
proved beyond a reasonable doubt to your satisfaction
were made freely and voluntarily you must disregard. Do
you understand what I’m doing? I kind of have to flip it
because the defendant does not have to prove that they
were made freely and voluntarily. . . . The State has to
prove by a preponderance of the evidence that the
statements were made freely and voluntarily. So any
portion that you do not find that were not proved to your
satisfaction by a preponderance of the evidence were made
freely and voluntarily[,] you must disregard. . . .
. . .
If you find any of those statements whether it relates
back or not, if you find that they were not freely and
voluntarily given then you must not consider it, or
conversely, since I have to make sure that there’s no
burden on the defendant to prove that they were freely
and voluntarily or not freely and voluntarily given, the
burden is on the State to prove that they were freely and
voluntarily given, but any statement before or after as
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
it goes through of any issue is a factual determination
as to whether or not they were freely and voluntarily
given, and if you determine that any portion of that
statement was not freely and voluntarily given then you
must disregard it. And I understand your question, I
really can’t answer it because it is a factual
determination that you have to make as to whether or not
a subsequent statement was freely and voluntarily given
or not.
Id. at 88-95.
Later on September 28, 2006, the jury returned its verdict,
finding O’Dell guilty of both first-degree murder and conspiracy to
commit murder, but recommending mercy. On November 8, 2006, the
Circuit Court denied O’Dell’s post-trial motions and sentenced him
to consecutive terms of imprisonment for life - with parole
eligibility after 15 years - and 1 to 5 years.
Thereafter, on September 17, 2008, the Circuit Court resentenced O’Dell so that he could file a petition for appeal (Dkt.
No. 58-1). On appeal, O’Dell argued: 1) the Circuit Court had erred
by refusing to suppress his statement and instructing the jury that
they could consider some portions of his statement even if they
found others to be involuntary; 2) the Circuit Court had erred by
admitting Brookman’s suicide note; 3) the state had failed to
disclose the results of testing on gunshot residue samples; and 4)
the evidence was insufficient to support a conviction (Dkt. No. 583 at 38-39). On October 28, 2009, the Supreme Court of Appeals of
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
West
Virginia
(“Supreme
Court
of
Appeals”)
summarily
refused
O’Dell’s petition for appeal (Dkt. No. 58-5).
B.
Post-Conviction Proceedings
1.
State Habeas Corpus3
After the Supreme Court of Appeals refused his petition for
appeal, O’Dell filed a pro se petition for habeas corpus on March
3, 2010 (Dkt. No. 58-6). The Circuit Court appointed counsel, who
filed an amended petition on O’Dell’s behalf, claiming that 1) the
admission of Brookman’s suicide note had deprived O’Dell of due
process; 2) the Circuit Court had erred by admitting O’Dell’s
statement after reviewing portions of a transcript rather than the
actual
videotape;
3)
trial
counsel
had
provided
ineffective
assistance; and 4) the weight of the errors warranted a new trial
(Dkt. No. 58-7). Habeas counsel also attached and incorporated a
lengthy amended petition penned by O’Dell, and asked that the
Circuit Court also address the issues raised by O’Dell. Id. at 25.4
3
The R&R contains a detailed recitation of these proceedings,
including the grounds raised in each petition, amended petition,
and appeal (Dkt. No. 66 at 5-11).
4
Although the attached pro se amended petition is not a part
of the record, Magistrate Judge Seibert obtained a copy and
confirmed that O’Dell raised the following claim: “The trial court
violated the petitioner’s 4th & 14th Amendment rights of the U.S.
Constitution and Article III, § 5 of the West Virginia Constitution
by committing plain and prejudicial error when it instructed the
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
The Circuit Court declined to hold an evidentiary hearing on
O’Dell’s first habeas petition, denying relief in a thorough 30page written order entered on January 30, 2013 (Dkt. No. 58-11).
The Circuit Court reasoned that O’Dell’s videotaped statement was
admissible, and that, despite pointed jury questions concerning
coercion, “[t]here [was] nothing in the record reflecting that the
jury actually found that any part of the Petitioner’s statement was
involuntary. If they did they gave the statement such weight as
they found it deserved and found the Petitioner guilty beyond a
reasonable doubt.” Id. at 23.
On appeal, the Supreme Court of Appeals denied relief by
memorandum opinion dated November 22, 2013 (Dkt. No. 58-13). It
reasoned that “[t]he record on appeal [was] entirely devoid of any
indication that petitioner’s interrogation was improper,” and that
he had “offered no support for the ground that his statement was
coerced.” Regarding O’Dell’s argument that the Circuit Court had
improperly instructed the jury, the Supreme Court of Appeals
observed that the record lacked a basis for the jury’s questions on
jury that they could consider portions of the petitioner’s
statement to be valid at the same time finding portions of it
invalid due to police coercion instead of instructing the jury to
disregard the entire statement if they found any of it to be the
product of police coercion” (Dkt. No. 66 at 5-6).
9
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
coercion. It was also satisfied by the Circuit Court’s “standard
instruction
regarding
the
State’s
obligation
to
prove
by
a
preponderance of the evidence that petitioner’s statement was
voluntarily made,” which “utilized the phrase, ‘without threat,
coercion, promise or reward.’” Id. at 7.
On March 27, 2014, O’Dell filed a second habeas petition in
the
Circuit
Court,
alleging
ineffective
assistance
of
habeas
counsel (Dkt. No. 58-14). The Circuit Court appointed counsel, who
filed an amended petition arguing that O’Dell’s first habeas
counsel had failed to prepare an adequate appendix, failed to
present proper arguments of law, and refused to include important
constitutional arguments (Dkt. No. 58-15 at 6-7). The Circuit Court
dismissed
the
petition,
concluding
that
habeas
counsel
had
adequately represented O’Dell, and that, in any event, he had not
been prejudiced by counsel’s actions (Dkt. No. 58-18 at 10), a
decision the Supreme Court of Appeals affirmed on June 3, 2016
(Dkt. No. 58-22).
2.
§ 2254 Petition
On April 21, 2014, while his second habeas corpus proceeding
was still pending in state court, O’Dell filed a § 2254 petition
and a motion for stay and abeyance in this Court (Dkt. No. 1). In
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
his
original
petition,
O’Dell
had
argued
that
1)
his
Sixth
Amendment right to confront witnesses had been violated by the
admission of
police testimony on medical findings, as well as
Brookman’s suicide note, and 2) his Fifth and Fourteenth Amendment
rights had been violated by the admission of his statement to
investigators, as well as the Circuit Court’s answers to relevant
jury questions during deliberations. Id. at 6-13. On February 5,
2015, the Court denied and dismissed the petition as untimely based
primarily on its conclusion that the time limitations of the AntiTerrorism and Effective Death Penalty Act had not begun anew when
the Circuit Court re-sentenced O’Dell in 2008 (Dkt. No. 22).
The
Fourth
Circuit
granted
O’Dell
a
certificate
of
appealability on the issue of timeliness and appointed counsel.
During briefing, the respondent conceded that O’Dell had timely
filed his petition; the Fourth Circuit therefore granted O’Dell’s
unopposed motion for summary disposition, reversed the Court’s
judgment, and remanded the case for further proceedings (Dkt. No.
37).
Thereafter, on May 3, 2016, the Court conducted a status
conference at which it stayed the case and directed O’Dell to
advise when the Supreme Court of Appeals issued its decision on his
second state habeas petition (Dkt. No. 43). On June 6, 2016, O’Dell
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
advised that the Supreme Court of Appeals had issued its decision
denying relief; on September 12, 2016, he further advised that the
Supreme Court of Appeals had denied his petition for rehearing
(Dkt. Nos. 46; 50).5 On September 28, 2016, the Court lifted the
stay and recommitted the case to the Honorable James E. Seibert,
United States Magistrate Judge (Dkt. No. 52).
O’Dell filed his Amended Petition on October 7, 2016, in which
he claims only that “the trial court’s ‘series of statements’ jury
instruction allowed the jury to consider portions of petitioner’s
statement that were subsequent to a coerced portion, even though
there were no intervening events that broke the ‘causal connection’
between
the
portions,
in
violation
of
the
United
States
Constitution” (Dkt. No. 54 at 5). Critically, according to O’Dell,
the jury’s references in the questions to “the coercion,” “the
perceived coercion,” and “original coercion” indicate that the jury
found he had been coerced during the interrogation. Id. at 11.
5
O’Dell also notified the Court that he intended to file an
original jurisdiction petition for habeas corpus in the Supreme
Court of Appeals (Dkt. No. 51). He filed that petition on September
20, 2016, raising the exact claim he has raised in the Amended
Petition before this Court (Dkt. No. 58-23). On April 23, 2017, the
Supreme Court of Appeals summarily refused to issue a writ of
habeas corpus (Dkt. No. 77).
12
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
In a Report and Recommendation (“R&R”) entered on December 27,
2016, Magistrate Judge Seibert recommended that the Court deny and
dismiss O’Dell’s amended petition (Dkt. No. 66). After finding that
O’Dell had successfully exhausted his sole claim in state court,6
Magistrate Judge Seibert further reasoned that O’Dell had failed to
establish that the Circuit Court’s instructions “rendered his trial
fundamentally unfair.” Id. at 29. O’Dell filed timely objections to
the R&R’s reasoning and conclusion (Dkt. No. 71-1).
II. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636, the Court must review de novo only the portions of
the
§
R&R
to
which
636(b)(1)(C).
an
objection
Otherwise,
“the
6
is
timely
Court
may
made.
28
adopt,
U.S.C.
without
Both parties and the magistrate judge agree that O’Dell
successfully exhausted his claim in state court. O’Dell believes
that he exhausted the claim on direct appeal (Dkt. No. 54 at 12),
while the respondent and magistrate judge believe he did so in his
first habeas proceeding (Dkt. Nos. 60 at 2-9; 66 at 22). O’Dell
objected at length to the R&R’s conclusion that he did not exhaust
the claim on direct appeal (Dkt. No. 71-1 at 3). He did not object,
however, to the R&R’s alternate reasoning that the claim was
exhausted in O’Dell’s first habeas proceeding. The Court’s review
of the R&R has uncovered no clear error in the magistrate judge’s
reasoning in this regard. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). While O’Dell may
prefer that he be correct as to the manner of exhaustion, it simply
has no effect on the magistrate judge’s recommendation. Therefore,
the Court need not reach O’Dell’s objection.
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
explanation, any of the magistrate judge’s recommendations to which
the prisoner does not object.” Dellacirprete v. Gutierrez, 479 F.
Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those portions
of a recommendation to which no objection has been made unless they
are “clearly erroneous.” See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
III. APPLICABLE LAW
Title 28 U.S.C. § 2254 permits a state prisoner to file an
application for a writ of habeas corpus to challenge his conviction
“only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Issuance of the writ is “certainly” appropriate where
the
court
fundamental
finds
“errors
fairness
of
that
the
undermine
state
confidence
adjudication.”
in
Williams
the
v.
Taylor, 529 U.S. 362, 375 (2000).
A court may not grant a writ under § 2254 regarding a claim
“adjudicated on the merits in State court” unless the adjudication:
(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
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
(2) resulted in a decision that was based on an
unreasonable determination of facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “[R]eview under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A “state-court decision is contrary to” the Supreme Court’s
“precedent if the state court arrives at a conclusion opposite to
that reached” by the Supreme Court “on a matter of law” or
“confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result opposite
to ours.” Williams, 529 U.S. at 405. A state court decision
“involves
an
unreasonable
application”
of
such
law
if
it
“identifies the correct governing legal principle . . . but
unreasonably applies” it to the facts at issue. Id. at 412.
Importantly, “unreasonable application” requires that the Court do
more than “conclude[] in its independent judgment that the relevant
state
court
decision
applied
clearly
established
federal
law
erroneously or incorrectly.” Id. at 411. Therefore, § 2254 acts to
guard only against “extreme malfunctions,” such as “cases where
there is no possibility fair minded jurists could disagree that the
state court’s decision conflicts with” Supreme Court precedent.
Harrington v. Richter, 562 U.S. 86, 102 (2011).
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
Indeed, “principles of comity and respect for state court
judgment precludes federal courts from granting habeas relief to
state prisoners for constitutional errors committed in state court
absent a showing that the error ‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’” Richmond
v. Polk, 375 F.3d 309, 335 (4th Cir. 2004) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)). As the Supreme Court has
explained in the context of jury instructions:
The only question . . . is whether the ailing instruction
by itself so infected the entire trial that the resulting
conviction violates due process. It is well established
that the instruction may not be judged in artificial
isolation, but must be considered in the context of the
instructions as a whole and the trial record. In
addition, in reviewing an ambiguous instruction . . . ,
we inquire whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way
that violates the Constitution. And we also bear in mind
our previous admonition that we have defined the category
of infractions that violate fundamental fairness very
narrowly. Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process Clause has limited
operation.
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal citation and
quotation omitted). Moreover, factual determinations by the state
court
are
presumed
correct,
unless
the
petitioner
can
prove
otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
see also Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010).
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
IV. DISCUSSION
In his R&R, Magistrate Judge Seibert reasoned that O’Dell had
failed to allege or establish that the Circuit Court’s jury
instructions rendered his trial fundamentally unfair, and thus
recommended that the Court deny his Amended Petition (Dkt. No. 66
at 29-30). In his objections, O’Dell continues to argue that the
Circuit Court’s “series of statements” instruction was erroneous.
He posits that the jury’s questions indicate it found he had been
coerced
during
the
interview,
and
that
the
Circuit
Court’s
instruction prompted the jury to impermissibly rely on portions of
his statement “subsequent to a coerced portion.” According to
O’Dell, it is thus reasonably likely that the jury applied the
instruction in a manner that violated the Constitution (Dkt. No.
71-1
at
11-18).
Upon
careful
review,
the
Court
agrees
with
Magistrate Judge Seibert that the Circuit Court’s jury instructions
could not have violated clearly established federal law or rendered
O’Dell’s trial fundamentally unfair.
There is a critical distinction between the Circuit Court’s
constitutional duty to exclude involuntary statements and its
state-law
duty
to
instruct
the
jury
on
voluntariness.
On
a
fundamental level, the Fifth Amendment precludes the admission of
involuntary statements or confessions wrongfully elicited by state
17
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
actors. The voluntariness of a confession is not a state-court
factual finding entitled to the presumption of correctness.7 Miller
v. Fenton, 474 U.S. 104, 110 (1985) (“Without exception, the
Court's
confession
cases
hold
that
the
ultimate
issue
of
‘voluntariness’ is a legal question requiring independent federal
determination.”). Rather, when a confession’s voluntariness is at
issue
in
a
§
2254
proceeding,
“federal
habeas
courts
must
independently apply federal law to ultimately determine whether the
state court's voluntariness determination was contrary to, or an
unreasonable application of, that law.” Moss v. Ballard, 537 F.
App’x 191, 196 (4th Cir. 2013) (unpublished decision).
As the Fourth Circuit has explained:
To determine whether a statement or confession was
obtained involuntarily, in violation of the Fifth
Amendment, “[t]he proper inquiry ‘is whether the
defendant's will has been overborne or his capacity for
self-determination critically impaired.’” To make this
determination, we consider “the totality of the
circumstances, including the characteristics of the
defendant, the setting of the interview, and the details
of the interrogation.”
We have consistently declined to hold categorically that
a suspect's statements are involuntary simply because
police deceptively highlight the positive aspects of
7
The Court notes that O’Dell objected to the R&R’s reasoning
that his “challenge to the ‘series of statements’ jury instructions
is merely a challenge to the factual determination by the jury that
his statement was voluntary” (Dkt. No. 71-1 at 9).
18
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
confession. . . . “The mere existence of threats,
violence, implied promises, improper influence, or other
coercive police activity . . . does not automatically
render a confession involuntary.” Rather, we must look at
the totality of the circumstances to see if [the
defendant] was not acting of his own volition.
United States v. Umana, 750 F.3d 320, 344-45 (4th Cir. 2014)
(internal citations omitted); see also Hayes v. Plumley, No. 2:15CV-15636, 2016 WL 5662037, at *5 (S.D.W. Va. Sept. 30, 2016);
Bailey
v.
United
States,
1:14CV904,
2016
WL
6271453,
at
*6
(M.D.N.C. Sept. 22, 2016). Moreover, “[a]n officer’s truthful
statement . . . [is] not an unduly coercive threat.” United States
v. Taylor, No. 16-4773, 2017 WL 2261531 (4th Cir. May 23, 2017)
(unpublished decision) (citing United States v. Braxton, 112 F.3d
777, 782 (4th Cir. 1997)).
O’Dell expressly disclaims any argument that his statement
actually was coerced, instead directing his challenge at the
Circuit Court’s jury instructions on voluntariness (Dkt. Nos. 63 at
4; 71-1 at 10). The Supreme Court of Appeals has adopted the
“humane” or “Massachusetts” rule permitting “juries to consider
voluntariness of confessions.” State v. Taylor, 285 S.E.2d 635, 636
(W. Va. 1981). “In all trials . . . where a confession or admission
is objected to by the defendant at trial or prior to trial on the
grounds of voluntariness, the trial court must instruct the jury on
19
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
this issue if requested by the defendant.” Syl. Pt. 5, State v.
Vance, 250 S.E.2d 146 (W. Va. 1978).
When it adopted this rule, West Virginia acknowledged that
“there is no Sixth Amendment right to have a jury redetermine the
voluntariness issue once the trial judge has decided the matter.”
Id. at 151 (citing Lego v. Twomey, 404 U.S. 477, 490-91 (1972));
Taylor, 285 S.E.2d at 382 (“This rule is not constitutionally
required.”). Nonetheless, it adopted the rule in an effort to
reinforce “the general concepts of the right to jury trial,” and to
recognize that preliminary judicial decisions are not infallible.
Vance, 250 S.E.2d at 150. Failure to give the instruction upon a
defendant’s request is reversible error. State v. Wilson, 439
S.E.2d 448, 454 (W. Va. 1993).
Here, after hearing testimony from Deputy Bohrer and reviewing
portions of the interview transcript identified by counsel, the
Circuit Court made a pretrial finding that O’Dell’s statement was
voluntary and would be admissible at trial (Dkt. No. 58-25 at 38).
The Supreme Court of Appeals summarily refused to grant a petition
for appeal on this ground (Dkt. No. 58-5). Moreover, when it
affirmed the Circuit Court’s denial of O’Dell’s first habeas
petition, the Supreme Court of Appeals found that “[t]he record on
20
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
appeal [was] entirely devoid of any indication that petitioner’s
interrogation was improper” (Dkt. No. 58-13 at 7).8
Nonetheless,
when
charging
the
jury
as
required
by
the
“humane” West Virginia rule, the Circuit Court instructed it to
consider O’Dell’s statement only if the state had proven “by a
preponderance of the evidence that such statement was freely and
voluntarily made” (Dkt. No. 58-29 at 12). In response to repeated
jury questions concerning this instruction, the Circuit Court
reiterated that it was incumbent upon the jury to determine whether
the state had met its burden regarding the entire interview or
discrete portions, as the jury saw fit. Id. at 85-95. As discussed,
the Supreme Court of Appeals was satisfied with this instruction
(Dkt. No. 58-13 at 7).
By arguing that the Circuit Court failed to instruct the jury
in accordance with clearly established federal law, O’Dell has
erroneously conflated the applicable standards. Of course, the
Circuit Court was constitutionally obligated to exclude O’Dell’s
statement if the totality of the circumstances established that it
8
In his second habeas petition, O’Dell argued that his first
habeas counsel was ineffective for failing to include relevant
portions of the record on appeal (Dkt. No. 58-15 at 6). The Circuit
Court found that O’Dell had not been prejudiced by counsel’s
actions, and the Supreme Court of Appeals affirmed (Dkt. Nos. 5818; 58-22).
21
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
was involuntary. See Umana, 750 F.3d at 344. Had O’Dell challenged
the Circuit Court’s conclusion in this regard, this Court likewise
would
be
obligated
to
assess
“whether
the
state
court’s
voluntariness determination was contrary to, or an unreasonable
application of” clearly established federal law. Moss, 537 F. App’x
at 196. But O’Dell has not done so, rather asserting that the sole
issue before the Court is “whether the jury was properly instructed
on the law of coerced statements,” to the exclusion of “[w]hether
[his] statement was coerced” (Dkt. No. 63 at 4).
Neither the Constitution nor clearly established federal law
required the Circuit Court to submit the question of voluntariness
to the jury. In fact, the Supreme Court of the United States has
expressly declined to impose such a requirement. Lego, 404 U.S. at
489-90. It is the Circuit Court - not the jury - that must “pass
upon the admissibility of evidence when constitutional grounds are
asserted for excluding it.” See id. at 490. Unlike the Circuit
Court’s
mandatory
determination,
West
Virginia’s
self-imposed
voluntariness instruction is prudential in nature and not regulated
by
the
strictures
of
the
Supreme
Court’s
Fifth
Amendment
jurisprudence. See Jackson v. Denno, 378 U.S. 368, 378 n.8 (1964)
(“Given the integrity of the preliminary proceedings before the
22
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
judge, the Massachusetts procedure does not, in our opinion, pose
hazards to the rights of a defendant.”).
Therefore, even assuming that the Circuit Court’s challenged
jury instructions were a wholly inaccurate statement of federal
law, they are in no way governed by such law, and “the fact that
the instruction was allegedly incorrect under state law is not a
basis for habeas relief.” Estelle, 502 U.S. at 71-72. Given the
Circuit
Court’s
unchallenged
determination
that
the
entire
statement at issue was voluntary and admissible, the jury was
permitted to consider the entire statement, and there thus can be
no reasonable likelihood it applied the instructions in violation
of the Constitution. See id. at 72. The sole claim of O’Dell’s
amended petition, a challenge to the content of precautionary jury
instructions
not
required
by
the
Constitution
or
clearly
established federal law, accordingly is without merit.
V. CONCLUSION
For the reasons discussed, the claim presented in O’Dell’s
amended petition is without merit. Therefore, the Court:
1)
ADOPTS the R&R (Dkt. No. 66);
2)
GRANTS the respondent’s motion for summary judgment (Dkt.
No. 58);
23
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
3)
GRANTS O’Dell’s motion for leave to file a 19-page
objection (Dkt. No. 71);
4)
GRANTS O’Dell’s motion for leave to file a 4-page reply
to the respondent’s response to his objections (Dkt. No.
73);
5)
OVERRULES O’Dell’s objections (Dkt. No. 71-1); and
6)
DENIES and DISMISSES WITH PREJUDICE O’Dell’s Amended
Petition (Dkt. No. 54).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail and
return receipt requested, and to enter a separate judgment order.
DATED: July 11, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to
the
applicant”
in
such
cases.
If
the
court
denies
the
certificate, “the parties may not appeal the denial but may seek a
24
O’DELL V. PLUMLEY
1:14CV73
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.” 28 U.S.C. foll. § 2254(a).
The
Court
finds
that
it
is
inappropriate
to
issue
a
certificate of appealability in this matter because O’Dell has not
made a “substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the
district
court
is
likewise
debatable.
See
Miller–El
v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court finds that O’Dell has not made the requisite showing, and
DENIES a certificate of appealability.9
9
As O’Dell points out in his objections (Dkt. No. 71-1 at 12), the Court acknowledges that, when the Fourth Circuit granted
O’Dell a certificate of appealability regarding the timeliness of
his § 2254 petition, it found that he had “made a substantial
showing of the denial of his Fifth and Fourteenth Amendment rights
against self-incrimination.” At that time, the appeals court had
neither the benefit of the entire record, nor the limited argument
that O’Dell now presents in his Amended Petition.
25
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