Minda v. Ballard
Filing
72
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION DKT. NO. 61 , DENYING THE PETITIONERS MOTION FOR DISPOSITION DKT. NO. 37 AND MOTION TO HOLD THE PETITION IN ABEYANCE DKT. NO. 35 ,DENYING THE RESPON DENTS MOTION TO DISMISS DKT. NO. 36 , GRANTING THE RESPONDENTS MOTION TO FILE SUPPLEMENTAL EXHIBITS DKT. NO. 52 , AND DIRECTING THE PETITIONER TO ADVISE THE COURT HOW HE INTENDS TO PROCEED. Court ORDERS Minda to notify it, within 14 days following receipt of this Opinion, whether heintends to amend his petition to delete any unexhausted claims. If Minda does not respond, the Court NOTIFIES him that it will dismiss his mixed petition. Signed by District Judge Irene M. Keeley on 8/31/2016. (Copy counsel of record)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ERIC PAUL MINDA,
Petitioner,
v.
//
CIVIL ACTION NO. 1:15CV123
(Judge Keeley)
DAVID BALLARD, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
Pending before the Court is the Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody (Dkt.
No. 1) filed by the petitioner, Eric Paul Minda (“Minda”). Also
pending is the Report and Recommendation (“R&R”) of the Honorable
James E. Seibert, United States Magistrate Judge, recommending that
the Court dismiss Minda’s § 2254 petition (Dkt. No. 61). The
questions presented are whether Minda has exhausted all of the
claims in his petition, and, if he has not, whether the Court
should dismiss the petition or stay the case. For the reasons that
follow, the Court ADOPTS IN PART and REJECTS IN PART the R&R,
DENIES the petitioner’s motion for disposition and motion to hold
the
petition
in
abeyance,
DENIES
the
respondent’s
motion
to
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
dismiss,
GRANTS
the
respondent’s
motion
to
file
supplemental
exhibits, and DIRECTS the petitioner to notify it, within 14 days,
how he intends to proceed.
BACKGROUND
On March 26, 2003, a jury in the Circuit Court of Ohio County,
West Virginia, convicted Minda of first degree robbery and also of
being a felon in possession of a firearm (Dkt. No. 16 at 1). The
court sentenced Minda to consecutive sentences of 90 years of
imprisonment
for
the
robbery
conviction,
and
5
years
of
imprisonment for being a felon in possession of a firearm. Id. at
1-2. Minda appealed his convictions to the Supreme Court of Appeals
of West Virginia (“the Supreme Court of Appeals”), which refused
his appeal on February 9, 2005. Id. at 2.
On December 1, 2005, Minda filed a petition for writ of habeas
corpus in the Circuit Court of Ohio County, id. at 3., which
summarily denied the petition on March 22, 2006. Id. at 4. Minda
appealed the circuit court’s denial to the Supreme Court of
Appeals, which granted the petition and remanded the case to the
2
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
circuit court for an omnibus evidentiary hearing (Dkt. No. 38 at
2); see also Minda v. Ballard, No. 14-0334, 2015 WL 1235229, at *1
(W. Va. Mar. 16, 2015). The circuit court ultimately denied Minda
habeas relief in January 2012. Id.
In April 2013, Minda appealed this decision to the Supreme
Court of Appeals, which again remanded the case, directing the
circuit court to hold an omnibus hearing on all of the issues in
Minda’s amended petition. Id. After holding a second omnibus
hearing, the circuit court denied Minda habeas relief on February
24, 2014. Id. at 3. The Supreme Court of Appeals affirmed the
circuit court’s decision on March 16, 2015. Id.
Meanwhile, on October 31, 2014, Minda filed a motion to
correct an illegal sentence in the Circuit Court of Ohio County.
Id.
Then, on July 27, 2015, he filed a second motion to correct an
illegal sentence. Id. On September 27, 2015, the circuit court
denied Minda’s motion, a decision now currently under review at the
Supreme Court of Appeals. Id.
3
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
Minda filed a habeas petition in this Court on July 27, 2015,
asserting various grounds for relief (Dkt. No. 1). He first
contends that he was denied meaningful and effective assistance of
counsel during his trial. He next contends that his 90-year
sentence for robbery violates the Eighth and Fourteenth Amendments
to the United States Constitution, that the trial court prevented
him from presenting a complete defense by failing to instruct the
jury on diminished capacity, and that the trial court denied him
due process and the meaningful assistance of counsel when it
imposed a five-year sentence for being a felon in possession of a
firearm (Dkt. No. 16 at 6, 8, 11; Dkt. No. 1 at 17).
On January 7, 2016, Minda moved to hold his petition in
abeyance pending the decision of the Supreme Court of Appeals (Dkt.
No. 35). In his motion, he acknowledges that some of his claims
have not been exhausted, but argues that he has demonstrated the
requisite
good
cause
to
obtain
a
stay
because
his
previous
attorneys failed to identify and present the appropriate issues to
the circuit court. Id. at 9.
4
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
On January 11, 2016, the respondent, Warden David Ballard
(“Ballard”), filed a motion to dismiss Minda’s petition on the
ground that Minda had not exhausted all of his claims in state
court before filing his petition (Dkt. No. 36 at 1). While Ballard
does not oppose a stay, he contends that the proper course of
action would be to dismiss the petition entirely. Id. at 2.
On January 19, 2016, Minda filed a motion seeking denial of
Ballard’s motion to dismiss (Dkt. No. 37). He argues that the Court
should deny Ballard’s motion to dismiss “as too draconian” and
grant his motion to stay. Id. at 5.
On March 4, 2016, Magistrate Judge Seibert issued an R&R, in
which he recommended that the Court grant Ballard’s motion to
dismiss, deny Minda’s motion to hold the petition in abeyance, and
dismiss the petition without prejudice (Dkt. No. 38 at 6). The R&R
concluded that Minda had failed to exhaust at least one of his
claims,
and
recommended
dismissal,
finding
it
would
be
inappropriate for this Court to entertain the petition until after
all claims were exhausted. Id. Minda objected to the R&R on March
5
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
17, 2016, arguing that the Court should grant his motion for a stay
because he has fairly presented the unexhausted issues in his
petition to the state court (Dkt. No. 40).
On April 21, 2016, the Court found that the evidence of record
was insufficient to determine whether Minda had in fact exhausted
his claims, and remanded the case to Magistrate Judge Seibert for
an evidentiary hearing (Dkt. No. 41). On June 6, 2016, Magistrate
Judge Seibert held an evidentiary hearing, following which, on June
17, 2016, he filed a second R&R recommending that the Court dismiss
Minda’s petition for failure to exhaust (Dkt. No. 61). Minda
objected, contending that he had exhausted most of his claims, and
that a stay, rather than dismissal, is the appropriate remedy (Dkt.
No. 65). The matter is fully briefed and ripe for disposition.
STANDARD OF REVIEW
When reviewing a magistrate judge’s report and recommendation
made pursuant to 28 U.S.C. § 636, the court must review de novo
only the portion to which an objection is timely made. 28 U.S.C. §
636(b)(1)(C). When no objections to the R&R are made, a magistrate
6
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
judge's findings and recommendation will be upheld unless they are
“clearly erroneous.” See Webb v. Califano, 468 F. Supp. 825, 828
(E.D. Cal. 1979). Because Minda objected to the conclusions in the
R&R, the Court will review the same de novo.
LEGAL STANDARD
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). Importantly, district courts may only entertain such a
writ if the applicant has exhausted all available state remedies.
Id. § 2254(b)(1)(A). Prisoners have not exhausted their state
remedies if they have “the right under the law of the State to
raise, by any available procedure, the question presented.” Id. §
2254(c). It is the prisoner’s burden to demonstrate that he has
exhausted his state judicial remedies. Beard v. Pruett, 134 F.3d
615, 619 (4th Cir. 1998). The exhaustion rule in § 2254(b), (c)
requires district courts to dismiss so-called “mixed petitions”
7
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
containing any unexhausted claims. Rose v. Lundy, 455 U.S. 509,
520-22 (1982). Prisoners may then resubmit petitions with only
exhausted claims, or exhaust the remainder of their claims before
filing another petition. Id. at 520.
In 1996, Congress enacted the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), which changed the landscape of federal
habeas law. See Rhines v. Weber, 544 U.S. 269, 272 (2005). Under
the AEDPA, prisoners must file suit within one year of the judgment
of the state court. 28 U.S.C. § 2255(d)(1). That time period begins
to run from the date when the state judgment became final “by the
conclusion of direct review or the expiration of the time for
seeking such review,” see id., but is tolled for the pendency of
any
state
post-conviction
proceedings.
Id.
§
2244(d)(2).
Importantly, a prisoner cannot toll the one-year limitation period
under the AEDPA by filing a federal habeas petition. Duncan v.
Walker, 533 U.S. 167, 172 (2001).
To remedy the potentially harsh consequences that arise when
prisoners file mixed § 2254 petitions near the one-year deadline,
8
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
district courts have discretion to grant a stay and abeyance.
Rhines, 544 U.S. at 277. This allows prisoners to pursue any
unexhausted claims in state court and return to the district court
to prosecute their § 2254 petitions. See id. The Supreme Court of
the United States has cautioned, however, that stays are to be
granted “in limited circumstances,” so as not to frustrate the
AEDPA’s objectives of achieving finality and streamlining federal
habeas proceedings. Id. The prisoner must show “good cause” for his
failure to exhaust his claims in state court; furthermore, his
claims must not be “plainly meritless.” Id. The district court must
structure
any
stay
to
comport
with
the
timeliness
concerns
reflected in AEDPA. Id. Finally, the district court must not grant
a prisoner a stay if he engages in “abusive litigation tactics or
intentional delay.” Id. at 278.
In the event that the Court decides a stay and abeyance is
inappropriate,
it
must
allow
the
prisoner
to
“delete
the
unexhausted claims and to proceed with the exhausted claims if
9
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
dismissal of the entire petition would unreasonably impair the
petitioner’s right to obtain federal relief.” Id.
LEGAL ANALYSIS
I.
Exhaustion
In the R&R, Magistrate Judge Seibert found that Minda had
failed to exhaust at least three of his claims (Dkt. No. 61 at 6).
One of those unexhausted claims, Minda’s fourth claim regarding his
rights to due process and the effective assistance of counsel, is
currently pending before the Supreme Court of Appeals (Dkt. No. 62
at 14–15).
In order to exhaust state remedies, a habeas petitioner must
“fairly present” the substance of his claim to the state’s highest
court. Pethtel v. Ballard, 617 F.3d 299, 306 (4th Cir. 2010)
(citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997)).
Although the petitioner’s claims “need not be identical,” he “must
present the substance of his federal habeas corpus claim.” Id.
(internal citations and quotation marks omitted). To present the
substance of his claim, the petitioner must present the claim
10
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
“face-up
and
squarely;
the
federal
question
must
be
plainly
defined. Oblique references which hint that a theory may be lurking
in the woodwork will not turn the trick.” Id. (citing Mallory v.
Smith, 27 F.3d 991, 995 (4th Cir. 1994) (internal quotation marks
omitted)). The petitioner must present both the operative facts and
the controlling legal principles to the state court. Id. (citations
omitted). The petitioner bears the burden of establishing that the
claims he raised in the state proceedings are the same claims he is
raising here. See Pritchess v. Davis, 421 U.S. 482, 487 (1975).
A.
Minda
Claim One
first
claims
that
he
was
denied
“meaningful
and
effective” assistance of counsel at trial (Dkt. No. 16 at 6).
Although conceding he did not raise this issue on direct appeal, he
contends he included it in his post-conviction habeas petition in
state court. Id. at 7; see United States v. King, 119 F.3d 290, 295
(4th Cir. 1997) (“[I]t is well settled that a claim of ineffective
assistance should be raised in a 28 U.S.C. § 2255 motion in the
district court rather than on direct appeal, unless the record
11
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
conclusively shows ineffective assistance.” (internal citations and
quotation marks omitted)). After the circuit court denied his
habeas petition, Minda appealed that denial and raised this issue
on appeal. Id.; see Minda v. Ballard, No. 14-0334, 2015 WL 1235229,
at *4 (W. Va. Mar. 16, 2015). At the evidentiary hearing, the
parties agreed that Minda had exhausted this claim (Dkt. No. 62 at
6, 18). The Court therefore concludes that Minda properly exhausted
his first claim by pursuing it in the circuit court and the Supreme
Court of Appeals.
B. Claim Two
Minda next claims that his 90-year sentence for robbery
violates the Eighth and Fourteenth Amendments to the United States
Constitution (Dkt. No. 16 at 8). He alleges that he raised this
issue on direct appeal, again in his state habeas petition, and
finally in his appeal to the Supreme Court of Appeals. Id. at 9-10;
Dkt. No. 62 at 6–11.
At
the
evidentiary
hearing,
Minda
refined
his
position,
explaining that he did exhaust the Eighth Amendment portion of this
12
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
claim (Dkt. No. 62 at 6). From a review of the record of that
hearing, Ballard appears to concede that Minda has exhausted his
Eighth Amendment claim. Id. at 18; 20. The R&R also implied as much
(Dkt. No. 61 at 8).
As
to
his
equal
protection
claim
under
the
Fourteenth
Amendment, however, Minda concedes that he did not include “an
explicit discussion in any of the pleadings or the briefs or the
petitions expressly making that argument” (Dkt. No. 62 at 7).
Nonetheless, he argues that the Court should “liberally construe”
his petition in order to find that he has exhausted this claim
(Dkt. No. 68 at 2).
According to Minda, he exhausted his equal protection claim
because, in a February 20, 2014 order, the circuit court noted that
he had alleged a violation “of his federal constitutional rights”
(Dkt. No. 68 at 2 (citing Dkt. No. 50-1 at 8–9)).
As an initial matter, the portion of the circuit court’s order
quoted by Minda appears to refer to a state constitutional claim,
and not a federal equal protection claim. See Dkt. No. 50-1 at 9
13
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
(citing
the
West
Virginia
Constitution).
Even
if
the
quoted
language did refer to a federal constitutional claim, however,
Minda has failed to fairly present his equal protection claim to
the state court. An “[o]blique reference” to the “Constitution”
does not establish Minda’s Fourteenth Amendment equal protection
claim with the required degree of specificity. See Pethtel, 617
F.3d at 306 (“[T]he federal question must be plainly defined.”).
The Court is unable to ascertain either the operative facts or the
controlling
legal
principles
on
which
Minda
relied.
Id.
It
therefore finds that, although Minda exhausted his Eighth Amendment
claim, he has failed to fairly present his Fourteenth Amendment
equal protection argument to the state court.
C.
Claim Three
Minda claims that the trial court denied him the right to
present a complete defense by refusing to instruct the jury on
diminished capacity (Dkt. No. 16 at 11). He alleges that he raised
this issue on direct appeal and in his state habeas petition, but
that his attorney failed to appeal this issue by “effectively
14
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
abandoning” him. Id. at 11-13. At the evidentiary hearing, Minda
explained that he had presented this argument to the circuit court,
but that it was “a little unclear” whether he had appealed the
claim to the Supreme Court of Appeals (Dkt. No. 62 at 12).
On November 16, 2005, Minda filed a petition for writ of
habeas corpus in the circuit court. Included in that petition was
a claim that the trial court had violated his due process and equal
protection rights under the United States Constitution by not
allowing him to rebut the State’s evidence of his crack cocaine
use, and by refusing to allow him to present a defense of voluntary
intoxication (Dkt. No. 50-4 at 8–9).
While Minda may have presented this claim to the circuit
court, he failed to appeal the denial of the claim to the Supreme
Court of Appeals. To exhaust state court remedies in West Virginia,
a petitioner must seek review by the Supreme Court of Appeals. See
Moore v. Kirby, 879 F. Supp. 592, 593 (S.D.W. Va. 1995). Insofar as
Minda clearly failed to appeal the denial of this claim to the
15
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
Supreme Court of Appeals, he has failed to exhaust that claim. See
id.
D. Claim Four
In his original § 2254 petition, Minda raised a fourth claim,
alleging that the state court had denied him due process of law by
imposing a five-year sentence for being a felon in possession of a
firearm (Dkt. No. 1 at 17). Minda indisputably did not raise this
due process claim on direct appeal or in his state habeas petition
(Dkt. No. 1 at 21; Dkt. No. 62 at 15). He filed a supplemental
memorandum after entirely omitting the fourth claim from his filing
on the court-approved form (Dkt. No. 30). In that memorandum, he
also included allegations that the five-year sentence violated the
prohibition on double jeopardy and his right to an impartial jury
trial. Id. at 11-13. The double jeopardy and jury trial allegations
never appeared in his state court filings until made, together with
the due process claim, in the proceedings on his motion for
correction of an illegal sentence that currently is on review at
the Supreme Court of Appeals (Dkt. No. 50-14, 50-15). Because the
16
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
due process, double jeopardy, and jury trial allegations of Minda’s
fourth claim await final disposition at the state level, the Court
finds that Minda has failed to exhaust that claim in its entirety.
After careful review, the Court concludes that Minda has
exhausted his first claim and part of his second claim regarding
the Eighth Amendment. However, he has failed to exhaust the part of
his second claim pertaining to the Fourteenth Amendment, his third
claim, and his fourth claim. He therefore has filed a mixed
petition.
II.
Stay
Turning next to whether Minda is entitled to a stay and
abeyance under Rhines, the Court notes that it has granted a stay
where, in state court, the petitioner presented “the same factual
arguments, and indeed the same legal argument” on state grounds,
rather than federal grounds. Dilworth v. Markle, No. 1:08CV200,
2010 WL 597491, at *2 (N.D.W. Va. Feb. 10, 2010). Here, however,
there is no evidence that Minda presented his federal claims to the
state court under the guise of state law (Dkt. No. 1 at 21).
17
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
Magistrates judges in this District also have recommended a
stay when there was no indication the petitioner had engaged in
dilatory tactics, and, if dismissed, his claim would otherwise be
barred under AEDPA’s limitation period. Murray v. Perry, No.
3:06CV51,
2007
WL
601494,
at
*5
(N.D.W.
Va.
Feb.
22,
2007)
(Seibert, M.J.) (issuing a report and recommendation that was not
adopted in Murray v. Perry, No. 3:06CV51, 2007 WL 777113, at *1
(N.D.W. Va. Mar. 12, 2007) (Stamp, J.), because the petitioner had
died). As noted by Magistrate Judge Seibert in his R&R, Minda would
not be barred from re-filing his § 2254 petition after exhausting
his state remedies. He should be aware, however, that when the
Supreme Court of Appeals decides his motion to correct an illegal
sentence, the AEDPA clock will begin ticking again (Dkt. No. 61 at
6, n.1). Given that a “significant portion” of the one-year
limitation period under AEDPA has already run, the time in which
Minda could re-file his petition would be limited. Id.
Minda’s case is similar to others where the Court has denied
requests for a stay because the petitioner knew or should have
18
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
known of his unexhausted claims when he filed a state habeas
petition. See, e.g., Holmes v. Ballard, No. 3:13CV97, 2014 WL
1516305, at *14 (N.D.W. Va. Apr. 17, 2014) (Groh, J.) (adopting the
R&R, which recommended denying a request for stay because the
petitioner knew or should have known of his unexhausted claims when
he filed his state habeas appeal). Although Minda argues that any
delay in this case is not his fault (Dkt. No. 68 at 3), the
relevant inquiry is whether he has shown “good cause” for his
failure to exhaust. Rhines, 544 U.S. at 278. Minda has not. Even if
the West Virginia state courts had promptly adjudicated Minda’s
claims, his § 2254 petition would still be mixed because he failed
to raise part of Claim 2 and Claim 3 in state court.
Therefore, for the reasons discussed, the Court concludes that
a stay pursuant to Rhines is inappropriate. Outright dismissal,
however, could impede Minda’s right to obtain federal relief if he
fails to file suit again before the statute of limitation expires.
Therefore, before dismissing his petition as recommended in the
R&R, the Court will allow Minda to provide notice, within 14 days
19
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
of receiving this Memorandum Opinion, whether he wishes to amend
his petition to delete his unexhausted claims and proceed on his
exhausted claims. Rhines, 544 U.S. at 278.
CONCLUSION
For the reasons discussed, the Court ADOPTS the R&R insofar as
it finds that Minda’s claims are unexhausted, but REJECTS the
recommendation to dismiss the petition outright (Dkt. No. 61). It
DENIES Minda’s motion for disposition (Dkt. No. 37), his motion to
hold the petition in abeyance (Dkt. No. 35), Ballard’s motion to
dismiss
(Dkt.
No.
36),
and
GRANTS
Ballard’s
motion
to
file
supplemental exhibits (Dkt. No. 52). It ORDERS Minda to notify it,
within 14 days following receipt of this Opinion, whether he
intends to amend his petition to delete any unexhausted claims. If
Minda does not respond, the Court NOTIFIES him that it will dismiss
his mixed petition.
It is so ORDERED.
20
MINDA V. BALLARD
1:15CV123
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART THE REPORT AND RECOMMENDATION [DKT. NO. 61],
DENYING THE PETITIONER’S MOTION FOR DISPOSITION [DKT. NO. 37] AND
MOTION TO HOLD THE PETITION IN ABEYANCE [DKT. NO. 35],
DENYING THE RESPONDENT’S MOTION TO DISMISS [DKT. NO. 36],
GRANTING THE RESPONDENT’S MOTION TO FILE SUPPLEMENTAL EXHIBITS
[DKT. NO. 52], AND DIRECTING THE PETITIONER TO ADVISE THE COURT
HOW HE INTENDS TO PROCEED
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, by certified mail,
return receipt requested.
DATED:
August 31, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
21
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