Prophet v. Ballard

Filing 73

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND RECOMMENDATION, DENYING AS MOOT RESPONDENT'S MOTION TO DISMISS AND REMANDING THE CASE: It is ORDERED that 68 Report and Recommendation is ADOPTED IN PART; CONCLUDES that Petitioner has abandoned the unexhausted Grounds 10(14), 12(3) and 12(4) of the Petition; DISMISSES WITH PREJUDICE Grounds 1 and 2 of the 13 Petition; DENIES AS MOOT Respondent's 53 Motion to Dismiss; DENIES AS MOOT Petitioner's 66 Motion to Expedit e; DENIES AS MOOT Petitioner's 67 Motion; GRANTS Petitioner's 70 Motion for Leave to File Excess Pages; and REMANDS the case to the Honorable Michael J. Aloi, U.S. Magistrate Judge, for consideration of the merits of Petitioner's remaining claims 3-9, 10(1)-10(13), 10(15)-10(16), 11, 12(1)-12(3), and 13. Signed by Senior Judge Irene M. Keeley on 3/28/18. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner; email MJA)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ANTONIO PROPHET,
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV178
(Judge Keeley)

DAVID BALLARD, Warden,
Respondent.

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
Pending for review is the Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody filed by the pro
se petitioner, Antonio Prophet (“Prophet”)(Dkt. No. 13), together
with a motion to dismiss filed by the respondent, David Ballard
(“Ballard”)

(Dkt.

No.

53).

Also

pending

is

the

Report

and

Recommendation (“R&R”) of the Honorable Michael J. Aloi, United
States

Magistrate

Judge,

recommending

that

the

Court

grant

Ballard’s motion and dismiss Prophet’s petition with prejudice
(Dkt. No. 68). The question presented in Ballard’s motion is
whether Prophet has exhausted certain claims in his petition, and,
if he has not, whether the Court should dismiss the petition.1

1

From a careful review of the record, the Court understands
that Ballard’s motion contests the exhaustion of some, but not all,
of Prophet’s claims. Although the R&R thoroughly discussed the
exhaustion of other claims in the Petition, Ballard did not seek to
dismiss those claims. Thus, in the Court’s view, the claims subject
to review here are only those that the parties have disputed as
exhausted. The Court therefore declines to adopt those portions of

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
For the reasons that follow, the Court ADOPTS in PART the R&R
(Dkt. No. 68), DENIES AS MOOT the respondent’s motion to dismiss
the petition (Dkt. No. 53), and REMANDS the case to the United
States Magistrate Judge for further proceedings consistent with
this opinion (Dkt. No. 43).
I. BACKGROUND
A.

Criminal Trial and Direct Appeal
On July 20, 2012, a jury in the Circuit Court of Berkeley

County, West Virginia (“Circuit Court”) convicted Prophet of two
counts of first-degree murder and one count of first-degree arson
(Dkt. Nos. 52-15 at 14; 52-10). On September 10, 2012, the Circuit
Court denied Prophet’s post-trial motions and sentenced him to
consecutive terms of life without the possibility of parole for
each murder conviction, and twenty (20) years of imprisonment for
the arson conviction (Dkt. No. 52-12). Prophet timely appealed his
convictions to the Supreme Court of Appeals of West Virginia
(“Supreme Court of Appeals”) (Dkt. No. 52-14), alleging seven (7)

the R&R concluding that claims not raised in Ballard’s motion to
dismiss are unexhausted. Remand to the magistrate judge is
necessary to allow for a full airing of the merits of those claims
by the parties, who have not yet briefed them. Those claims include
the following grounds: 3-9, 10(1)-10(13), 10(15)-10(16), 11, 12(1)12(3), and 13.
2

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
assignments of error: 1) insufficient evidence; 2) the prosecutor’s
use on cross-examination of Prophet’s self-authored novel; 3) the
prosecutor’s comments on Prophet’s post-arrest silence; 4) the
Circuit Court’s rejection of Prophet’s proferred jury instruction;
5) the State’s presentation of allegedly perjured testimony; 6)
prosecutorial misconduct; and 7) judicial misconduct. On June 5,
2014, the Supreme Court of Appeals affirmed Prophet’s convictions,
finding all his claims to be without merit (Dkt. No. 52-15). The
court’s mandate issued on September 2, 2014. Id.
B.

Post-Conviction Proceedings
1. State Habeas Corpus
Prophet filed a pro se petition seeking habeas corpus relief

on February 2, 2015 (Dkt. No. 52-16). The Circuit Court appointed
counsel, who filed an amended petition, asserting thirteen (13)
grounds for relief. These included, among others, nine (9) subgrounds
judicial

of

prosecutorial

misconduct,

misconduct,

eight

(8)

nine

(9)

sub-grounds

sub-grounds
of

of

ineffective

assistance of trial counsel, and two (2) sub-grounds of ineffective
assistance of appellate counsel (Dkt. No. 52-18).
By written order entered on June 24, 2015, the Circuit Court
dismissed twenty-two (22) of the grounds or sub-grounds raised in

3

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
Prophet’s amended petition and directed the respondent to answer
the remaining claims of ineffective assistance of counsel (Dkt. No.
52-19). Subsequently, the Circuit Court denied habeas relief on
those claims, finding that neither Prophet’s trial counsel nor his
appellate counsel had been ineffective (Dkt. No. 52-21). Prophet
timely appealed the Circuit Court’s denial of habeas relief (Dkt.
No. 52-22).
On appeal, Prophet alleged eleven (11) assignments of error,
including seventeen (17) sub-grounds of ineffective assistance of
trial counsel and five (5) sub-grounds of ineffective assistance of
appellate counsel (Dkt. No. 52-23). Finding no substantial question
of law and no prejudicial error, the Supreme Court of Appeals
affirmed the Circuit Court’s denial of habeas relief by memorandum
decision dated June 21, 2016 (Dkt. No. 52-24). The court’s mandate
issued on July 22, 2016. Id.
2.

§ 2254 Petition

Prophet filed his § 2254 petition in this Court on August 24,
2016, asserting various grounds for habeas relief (Dkt. No. 1).
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred the
Petition to the Honorable Michael J. Aloi, United States Magistrate
Judge, for initial review. Thereafter, on August 29, 2016, the

4

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
magistrate judge struck the filing of the petition for failure to
comply with the local rules (Dkt. No. 10). Prophet then re-filed
his petition on September 2, 2016 (“Petition”) (Dkt. No. 13).
The Petition raises thirteen (13) claims for habeas relief,
including various sub-grounds of ineffective assistance of trial
and appellate counsel. Id. On August 16, 2017, Ballard filed a
motion to dismiss the Petition, arguing that Prophet had not
exhausted all of his claims in state court before filing his
Petition (Dkt. No. 53). Specifically, Ballad argued that Prophet
had raised four (4) claims of ineffective assistance of trial
counsel and three (3) claims of ineffective assistance of appellate
counsel that were not considered in his state post-conviction
proceedings (Dkt. No. 55). In response, Prophet abandoned four of
the seven disputed claims, and requested that, in the event the
Court deemed the other three claims at issue to be unexhausted, he
be allowed to abandon those claims as well, and proceed on his
remaining claims (Dkt. No. 61).
In a Report and Recommendation (“R&R”) entered on February 6,
2018, Magistrate Judge Aloi recommended that the Court grant
Ballard’s motion to dismiss and deny and dismiss the Petition with
prejudice (Dkt. No. 68). The R&R concluded that Prophet’s claims

5

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
regarding

prejudicial

pre-trial

and

trial

publicity,

and

the

Circuit Court’s refusal to strike two jurors for cause (Grounds One
and Two), were procedurally barred by his failure to raise the
claims on direct review. Id. at 59. It further concluded that
Prophet had failed to exhaust his state remedies regarding any of
the remaining claims challenged in the motion to dismiss. Id. at
90.
The magistrate judge informed Prophet of his right to file
“written

objections

identifying

those

portions

of

the

recommendation to which objection is made and the basis for such
objections.” Id. at 94. It further warned that the failure to do so
may result in waiver of his right to appeal. Id. Prophet timely
filed his objections to the R&R on February 20, 2018 (Dkt. No. 71).
II. STANDARDS OF REVIEW
A.

Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A court may not, however, construct the
plaintiff’s legal arguments for him, nor should it “conjure up
questions never squarely presented.” Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).

6

PROPHET V. BALLARD

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
B.

Report and Recommendation
When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without 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). Because
Prophet objected to the conclusions and recommendations in the R&R,
the Court will review his objctions de novo.
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). “[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 court

7

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1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
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
(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.
Id. § 2254(d).
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 v. Taylor, 529 U.S. 362, 405 (2000). 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. 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
8

PROPHET V. BALLARD

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
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).
Indeed, “principles of comity and respect for state court
judgment preclude 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)). Factual determinations by
the state court are presumed correct, unless the petitioner proves
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).
Of importance here, district courts may only entertain a writ
under § 2254 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)

9

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
requires district courts to dismiss so-called “mixed petitions”
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.
IV. DISCUSSION
A.

Exhaustion
Ballard seeks dismissal of the Petition on the ground that

Prophet failed to exhaust all of his claims for relief in state
court (Dkt. Nos. 53; 55). More particularly, Ballard argues that
seven (7) of Prophet’s ineffective assistance of counsel claims
were not considered during his state post-conviction proceedings
(Dkt. No. 55 at 22-23). In his response to the motion to dismiss,
Prophet abandoned four (4) of those claims, and requested that the
Court consider the issue of exhaustion only as to the other three
(3) claims challenged by Ballard (Dkt. No. 61 at 2). Those include:
Ground 10(14)

Trial counsel failed to object to, and move
for a mistrial for, the cumulative effect of
the persistent misconduct of the prosecutor,
including,
but
not
limited
to,
the
prosecutor’s knowing use of false testimony
(“Ground 10(14)”);

Ground 12(3)

Appellate counsel failed to pinpoint with
accurate, appropriate, and specific citations
to the trial record the post-Miranda silence
10

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
remarks of the prosecutor (“Ground 12(3)”);
and
Ground 12(4)

Appellate
counsel
rendered ineffective
assistance by failing to challenge the circuit
court’s refusal to strike two jurors for cause
on appeal (“Ground 12(4)”).

Dkt. No. 13-1 at 4-6. For the reasons that follow, the Court
concludes that these three claims also have not been exhausted.
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
“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)). The petitioner must
present

both

the

operative

facts

and

the

controlling

legal

principles to the state court. Id. (citations omitted). As noted,
the petitioner bears the burden of establishing that the claims he

11

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
raised in the state proceedings are the same claims he has raised
here. See Pritchess v. Davis, 421 U.S. 482, 487 (1975).
In West Virginia, prisoners may exhaust their available state
court remedies either by stating cognizable federal constitutional
claims in a direct appeal, or by stating such claims in a petition
for a writ of habeas corpus in a state circuit court pursuant to
West Virginia Code § 53–4A–1, followed by filing a petition for
appeal from an adverse ruling in the Supreme Court of Appeals.
Moore v. Kirby, 879 F.Supp. 592, 593 (S.D.W.Va. 1995); McDaniel v.
Holland, 631 F.Supp. 1544, 1545 (S.D.W.Va. 1986). A prisoner may
also exhaust his state court remedies by filing a petition for a
writ of habeas corpus filed under the original jurisdiction of the
Supreme

Court

of

Appeals.

Importantly,

however,

an

original

jurisdiction petition that is denied without an indication that the
denial is with prejudice following a determination on the merits
will not exhaust the prisoner's state court remedies. See Moore,
879 F.Supp. at 593; McDaniel, 631 F.Supp. at 1546; see also Meadows
v. Legursky, 904 F.2d 903, 908–909 (4th Cir. 1990).
The parties do not dispute that Prophet raised Grounds 10(14),
12(3) and 12(4) of the Petition in his brief appealing the Circuit
Court’s denial of his state habeas petition (Dkt. No. 52-23). They

12

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1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
also do not dispute that Prophet never raised these grounds in his
state habeas petition and they therefore were not considered by the
Circuit Court.
What Ballard does contend is that, because Grounds 10(14),
12(3), and 12(4) were not considered by the Circuit Court, they
were not properly before the Supreme Court of Appeals on appeal
(Dkt.

No.

55

at

23-24).

He

further

contends

that,

based

on

Prophet’s procedural error in failing to raise Grounds 10(14),
12(3), and 12(4) in the Circuit Court, they have not been properly
exhausted. Id. at 25. Prophet disputes this, claiming that he has
fully exhausted the claims because he “‘fairly presented’ [them] to
the State’s highest court” on appeal, where, in his appellate
brief, he “invoked the Original Jurisdiction of that court” to
grant his writ of habeas corpus (Dkt. No. 61 at 9-10).
1.

Appeal from Adverse Ruling

As noted, a prisoner may exhaust his available state court
remedies by stating cognizable federal constitutional claims in a
petition for a writ of habeas corpus in a state circuit court.
Following an adverse ruling there, he may file a petition for
appeal in the Supreme Court of Appeals. Moore, 879 F.Supp. at 593;
McDaniel, 631 F.Supp. at 1545. Although Prophet appealed from an

13

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
adverse ruling on his state habeas petition, his inclusion for the
first time on appeal of the claims now alleged in Grounds 10(14),
12(3) and 12(4) of the Petition does not excuse his failure to
present them in his underlying habeas petition in the Circuit
Court.
As a general rule, the Supreme Court of Appeals does not
consider grounds raised for the first time on appeal. State v.
Jessie, 689 S.E.2d 21, 27 (W.Va. 2009) (citing Whitlow v. Bd. of
Educ. of Kanawha Cnty., 438 S.E.2d 15, 18 (W. Va. 1993)(“The
rationale behind this rule is that when an issue has not been
raised below, the facts underlying that issue will not have been
developed in such a way so that a disposition can be made on
appeal.”)). Because Prophet failed to raise Grounds 10(14), 12(3)
and 12(4) in his state habeas petition, those claims were not
properly before the Supreme Court of Appeals when Prophet included
them in his appeal of the Circuit Court’s denial of that petition.
Notably, and presumably because Grounds 10(14), 12(3) and
12(4) were not considered by the court below, the Supreme Court of
Appeals made no reference to, and therefore included no factual
findings or legal determinations as to, those claims in its
memorandum decision affirming the Circuit Court’s denial of relief

14

PROPHET V. BALLARD

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
(Dkt. No. 52-24).2

As such, there is no way for this Court to

determine whether the Supreme Court of Appeals’ adjudication of
these claims 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 resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. § 2254(d).
Furthermore, the issuance of a memorandum decision rather than
an opinion by the Supreme Court of Appeals supports Ballard’s
contention that the court did not consider Prophet’s newly raised
Grounds 10(14), 12(3) and 12(4) on appeal. After finding “no
substantial question of law and no prejudicial error” in the
record, the Supreme Court of Appeals concluded that a memorandum
decision affirming the Circuit Court’s orders was appropriate under
West Virginia Rule of Appellate Procedure 21(c). Id. at 1. W. Va.
R.A.P. 21(c) provides that memorandum decisions affirming the
decision of a lower court are appropriate when the Court of Appeals

2

In contrast, the court independently analyzed Prophet’s
claims that he was unconstitutionally prevented from proceeding pro
se during his habeas proceedings, and that the Supreme Court of
Appeals had failed to consider adequate federal precedent during
his direct appeal. Id. at 5.
15

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
(1) finds no substantial question of law and does not disagree with
the decision of the lower tribunal as to the question of law, or
(2) upon consideration of the applicable standard of review and the
record presented, finds no prejudicial error. Rule 21(c) thus
separates a memorandum decision from an opinion, which would have
been necessary had the Supreme Court of Appeals considered the
merits of the claims raised by Prophet for the first time on
appeal, including those contained in Grounds 10(14), 12(3) and
12(4).
2.

Original Jurisdiction

The

Supreme

Court

of

Appeals’

issuance

of

a

memorandum

decision, rather than an opinion, also establishes that, despite
Prophet’s contention in his appellate brief that he “invoked” the
court’s original jurisdiction to issue a writ of habeas corpus, the
court declined to find or exercise such jurisdiction in the case.
Prophet initiated his appeal of the denial of his state habeas
petition by filing a Notice of Appeal, as required by West Virginia
Rule of Appellate Procedure Rule 5(b).

That Notice asserted that

he was appealing the Circuit Court’s orders denying his habeas
petition (Dkt. No. 52-22 at 6). And again, in his brief on appeal

16

PROPHET V. BALLARD

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MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
filed pursuant to Rule 5(f), Prophet asserted that he was appealing
the Circuit Court’s orders (Dkt. No. 52-23).
Crucially, when he attempted to invoke the Supreme Court of
Appeals’ original jurisdiction as part of his appeal, Prophet erred
procedurally by filing his Notice of Appeal under the requirements
of Rule 5, and failing to file an original jurisdiction habeas
petition pursuant to Rule 16 (Original Jurisdiction), which is
initiated without a Notice of Appeal, and by filing an original
jurisdiction petition directly with the Clerk of the Supreme Court
of Appeals. Unsurprisingly, the memorandum decision of the Supreme
Court of Appeals made no mention of, or reference to, Prophet’s
“invocation” of original jurisdiction.
This Court therefore concludes that, because of Prophet’s
procedural error in his state habeas petition, the substance of
Grounds 10(14), 12(3) and 12(4) has not been “fairly present[ed]”
to the state's highest court, as required for exhaustion. Pethtel,
617 F.3d at 306. Consequently, because he failed to properly
exhaust Grounds 10(14), 12(3) and 12(4) of the Petition, Prophet
has filed a mixed petition.
The exhaustion rule generally requires district courts to
dismiss

mixed

petitions

containing

17

any

unexhausted

claims.

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
§ 2254(b), (c); Rose, 455 U.S. at 520–22. Prophet, however, has
clearly indicated that, should the Court find any of his claims
unexhausted,

he

wishes

to

amend

his

Petition

to

delete

the

unexhausted claims and to proceed only on his exhausted claims
(Dkt. No. 55 at 12). Finding no good cause to deny Prophet’s
request to so proceed, the Court deems that Prophet has abandoned
Grounds 10(14), 12(3) and 12(4) and, therefore, DENIES as MOOT
Ballard’s motion to dismiss the Petition (Dkt. No. 53).
B.

Procedural Default
In his motion to dismiss, Ballard never argued that any of

Prophet’s claims were procedurally defaulted. However, he did raise
the issue in his response to the Petition (Dkt. No. 52 at 5).
Because Ballard raised procedural default as a ground for denial of
the Petition, the magistrate judge considered it in the R&R (Dkt.
No. 68 at 53-59), and found Grounds 1 and 2 of the Petition
procedurally barred. Id. at 59. Prophet objected to this, asserting
that he had “successfully demonstrated the ‘cause and prejudice
standard’ required of him” to overcome procedural default

(Dkt.

No. 71 at 19-20). Accordingly, the Court will consider de novo
whether Grounds 1 and 2 of the Petition are procedurally barred.

18

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
Procedural default is an equitable doctrine that acts as a
corollary to the exhaustion requirement of § 2254. Dretka v. Haley,
541 U.S. 386, 392 (2004). In federal habeas proceedings, the Court
“will not review a question of federal law decided by a state court
if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment . . . whether the state law ground is substantive or
procedural.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). This
“adequate and independent state ground” prevents petitioners from
exhausting their federal claims in state court through purposeful
procedural default. Id. at 732.
Here, after finding that Prophet had failed to raise, at trial
or

on

direct

appeal,

claims

that

(1)

undue

media

coverage

influenced the jury (“Ground 1"), and that (2) the trial court
erred in denying his motions to strike two jurors for cause
(“Ground 2"), the Circuit Court concluded that he had waived these
claims and denied habeas relief (Dkt. No. 52-19 at 11-12).
The Supreme Court of Appeals affirmed, concluding that the
Circuit Court’s orders, including the June 24, 2015 order finding
that Prophet had waived Grounds 1 and 2, “adequately resolve[d] all
issues raised by petitioner in his habeas petition except for . .

19

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
. two issues,” neither of which were the claims at issue here (Dkt.
No. 52-24 at 5). In addressing waiver, the Circuit Court determined
that Prophet had “knowingly and intelligently fail[ed] to advance”
the contention contained in Ground 1 of his habeas petition at
trial or on appeal, and had similarly “fail[ed] to advance” the
contention in Ground 2 on appeal (Dkt. No. 52-19 at 11-12).
The “waiver” provision referenced by the Circuit Court is
found at W. Va. Code

§ 53-4A-1(c), and provides as follows:

[A] contention or contentions and the grounds in fact or
law relief upon in support thereof shall be deemed to
have been waived when the petitioner could have advanced,
but intelligently and knowingly failed to advance, such
contention or contentions and grounds . . . in a
proceeding or proceedings on a prior petition or
petitions filed under the provisions of this article . .
. .
In light of this well-established authority, Prophet cannot
argue here that the procedural bar on his claims of undue media
coverage and failure to strike jurors for cause was not based on an
adequate and independent state law ground. See Coleman, 501 U.S. at
729.
1.

Adequate and Independent State Law Ground

A state procedural rule is adequate if “firmly established and
regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011).
The rule must be firmly established and regularly applied at the
20

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
time a petitioner ran afoul of it, not when it was applied by the
state court. See Leyva v. Williams, 504 F.3d 357, 366-67 (3d Cir.
2007). “As a general matter, whenever a procedural rule is derived
from

state

statutes

.

.

.

the

rule

is

necessarily

firmly

established.” O’Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir.
1996). A rule is “regularly followed” if “applied consistently to
cases that are procedurally analogous,” including “cases in which
the particular claim could have been raised previously but was
not.” Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir.
2010) (quoting McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000)).
As waiver is a firmly established principle of West Virginia
jurisprudence that has been consistently applied by the state
courts, it provides an adequate ground of support of the state
court’s ruling. Walker, 562 U.S. at 316. Section 53-4A-1(c) waiver
is a statutory rule enacted in 1967 and thus “necessarily firmly
established.” O’Dell, 95 F.3d at 1241. Nor is there evidence that
the Supreme Court of Appeals has not applied this rule regularly
and consistently. See Boothe v. Ballard, No. 2:14cv25165, 2016 WL
1275054, at *46-*49 (S.D.W. Va. Mar. 31, 2016) (holding that waiver
is adequate and independent where “a petitioner is represented by
counsel and fails to appeal certain claims to the” Supreme Court of

21

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
Appeals); Howard v. Ballard, No. 5:08cv112, 2009 WL 1872970, at *14
(N.D.W. Va. June 29, 2009) (“[T]here is no evidence that 53-4A-1c
has not been regularly and consistently applied.”).
The decision of the Supreme Court of Appeals barring Prophet’s
claims as waived also was independent of federal law. A state
procedural rule is not independent if it “depend[s] on a federal
constitutional ruling on the merits.” Stewart v. Smith, 536 U.S.
856, 860 (2002). In other words, if the application of a state
procedural bar such as res judicata is predicated on a federal
constitutional
ground.

Foster

ruling,
v.

it

does

Chapman,

not

136

constitute

S.Ct.

1737,

an

independent

1745-47

(2016).

Moreover, the Supreme Court’s established presumption of federal
review includes those cases not only where a state court judgment
“rest[s] primarily on federal law,” but also where it “fairly
appears” to be “interwoven with federal law.” Coleman, 501 U.S. at
739. Here, the state court did not rely on a federal constitutional
ruling

in

its

application

of

the

waiver

provision,

and

its

discussion on the matter neither rested primarily on federal law,
nor appeared to be “interwoven with” federal law (Dkt. No. 52-19 at
11-12).

22

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
Therefore, the Supreme Court of Appeals’ bar of Grounds 1 and
2 rests on an adequate and independent state law ground, and
Prophet is not free to pursue his procedurally defaulted claims.
2.

Cause and Actual Prejudice

The doctrine of procedural default illustrates the principle
that

“[f]ederal

courts

sitting

in

habeas

.

.

.

are

not

an

alternative forum for trying . . . issues which a prisoner made
insufficient effort to pursue in state proceedings.” Trevino v.
Thaler,

569

U.S.

413,

430

(2013)

(Roberts

C.J.,

dissenting)

(quoting Williams, 529 U.S. at 437). Nonetheless, a petitioner may
advance procedurally defaulted claims under § 2254 if he “can
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750.
“‘Cause’ under the cause and prejudice standard must be
something external to the petitioner, something that cannot fairly
be attributed to him . . . .” Id. at 753. Such an “objective factor
external to the defense” might include unavailability of the
factual or legal basis for a claim or interference by officials.
Id. (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Notably,
litigants must bear the risk of attorney error; simple ignorance or
23

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
inadvertence of counsel will not suffice to establish cause. Id.
Attorney

error

that

rises

to

the

level

of

constitutionally

ineffective assistance, however, is sufficient to establish cause.
A failure to provide adequate counsel as required by the Sixth
Amendment must “be imputed to the state” and is thus a factor
external to the defense. Id. at 754.
To avoid the consequences of his default, Prophet alleges that
his counsel was ineffective for failing to raise Grounds 1 and 2 on
direct appeal (Dkt. No. 62 at 3-4). He asserts that, although he
requested and expected the claims to be raised, counsel declined to
advance them. Id. at 5. Prophet further asserts that, had these
claims been raised, his appeal “would have been successful.” Id. at
5.

Thus,

he

reasons

ineffectiveness

that

establishes

counsel
the

was

ineffective

requisite

cause

and

and

such

actual

prejudice to excuse his default.
In Strickland v. Washington, the Supreme Court of the United
States articulated a two-prong test for assessing the assistance of
counsel. 466 U.S. 668 (1984). In order to establish a violation of
his Sixth Amendment rights under Strickland, a defendant must
demonstrate “that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.” Id. at 687.

24

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
The “performance prong” requires establishing that “counsel’s
representation fell below an objective standard of reasonableness.”
Id.

at

687-88.

In

reviewing

the

reasonableness

of

counsel’s

performance, “judicial scrutiny must be highly deferential.” Id. at
689-90. In fact, there is a “strong presumption” that the conduct
at

issue

is

reasonable

on

the

“wide

range

of

reasonable

professional assistance.” Id. at 689. Under the “prejudice prong,”
the

defendant

must

establish

that

“there

is

a

reasonable

probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Id. at 694.

A reasonable probability is one that is “sufficient to undermine
confidence in the outcome.” Id.
In this case, Prophet contends that he received ineffective
assistance of counsel because although his appellate counsel filed
a

merits

brief

he

failed

to

raise

two

particular

claims.

Importantly, the Supreme Court of the United States has held that
“appellate counsel who files a merits brief need not (and should
not) raise every nonfrivolous claim.” Smith v. Robbins, 528 U.S.
259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)).
Neither is counsel required to raise every colorable claim on
appeal. Jones, 463 U.S. at 754.

To the contrary, “counsel rather

25

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
may select from among them in order to maximize the likelihood of
success.” Smith, 528 U.S. at 288.
The Supreme Court has observed that, “[w]innowing out weaker
arguments on appeal and focusing on those more likely to prevail,
far from being evidence of incompetence, is the hallmark of
effective advocacy.” Smith v. Murray,

477 U.S. 527, 536 (1986)

(internal quotation marks omitted). Counsel therefore has latitude
to decide what claims to advance on appeal. Cole v. Branker, 328 F.
App’x 149, 158-59 (4th Cir. 2008). Finally, the Supreme Court has
noted that, when arguing that appellate counsel failed to raise a
particular claim, it is “possible” but “difficult to demonstrate
that counsel was incompetent.” Smith, 528 U.S. at 288 (citing Gray
v. Greer, 800 F.2d 644, 656 (7th Cir. 1986) (“Generally, only when
ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.”).
Here, Prophet’s counsel raised a number of issues on appeal.
In particular, he challenged the sufficiency of the evidence, the
state’s use of a novel authored by Prophet, and the prosecutor’s
comments on Prophet’s post-arrest silence (Dkt. No. 52-14 at 8; 39;
45).

He also challenged the Circuit Court’s refusal to give

Prophet’s proferred jury instruction on his theory of defense, as
well as the State’s “knowing[]” presentation of allegedly “false
26

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
and perjured” testimony. Id. at 48; 50-58. Finally, he advanced
claims of prosecutorial and judicial misconduct based on allegedly
“improper remarks” made by the prosecutor and trial judge. Id. at
58-72; 72-78.

In total, counsel raised seven assignments of error

on appeal.
Especially in light of the rule that counsel need not raise
every

colorable

claim,

Jones,

463

U.S.

at

754,

it

was

not

objectively unreasonable for Prophet’s appellate counsel to focus
his arguments on these seven grounds, and the accompanying subgrounds, rather than to pursue the two additional grounds Prophet
raises here. See Cole, 328 F. App’x at 159; see also Jones, 463
U.S. at 753 (“A brief that raises every colorable issue runs the
risk of burying good arguments.”). Thus, Prophet has not overcome
the presumption that counsel merely “winnow[ed] out” weaker claims
on appeal in order to focus on those he felt were more likely to
prevail.
Moreover,

Prophet

“ignored” on appeal

has

not

established

that

the

claims

were “clearly stronger than” those raised.

Gray, 800 F.2d at 656. At best, he “has shown that these claims
could have been raised on direct appeal, not that they should have
been

raised,

or

that

they

were

more

meritorious

than

those

presented.” Howard, 2009 WL 1872970, at *15. The Court therefore
27

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
concludes that Prophet’s appellate counsel performed “within the
wide range of reasonable professional assistance.” See Strickland,
466 U.S. at 689; Jones, 463 U.S. at 754.
Because Prophet received the effective assistance of counsel
on appeal, the Court need not consider the prejudice element. Cole,
328 F. App’x at 159. Even so, Prophet has failed to establish a
reasonable probability that, but for counsel’s failure to raise
these issues on appeal, the result of that proceeding would have
been different. At bottom, and for the reasons more fully discussed
in the R&R, Prophet’s conclusory allegation that, had the claims
been raised by counsel, his appeal “would have been successful,” is
insufficient to “undermine confidence in the outcome” of that
proceeding. Strickland, 466 U.S. at 694.
For these reasons, the Court concludes that Prophet has failed
to establish that his counsel was ineffective on appeal so as to
show

cause

and

actual

prejudice

3

for

his

procedural

default.3

Notably, Prophet does not assert that a “fundamental
miscarriage of justice” will occur if the Court does not consider
the merits of Grounds 1 and 2. Coleman, 501 U.S. at 750. Nor has he
established that he is actually innocent of the crimes for which he
was convicted. See Prieto v. Zook, 791 F.3d 465, 469 (4th Cir.
2015)(noting that, in order to establish a “fundamental miscarriage
of justice,” a petitioner must prove that “a constitutional
violation has probably resulted in the conviction of one who is
actually innocent”)(internal citations omitted).
28

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
Accordingly, because the state court rested its decision to deny
relief on an independent and adequate state ground and Prophet has
failed to show cause or prejudice, the Court concludes that Grounds
1 and 2 of the Petition are procedurally barred and, therefore,
DISMISSES both claims WITH PREJUDICE.
V. CONCLUSION
For the reasons discussed, the Court:
1).

ADOPTS in PART the R&R to the extent it finds Grounds
10(14),

12(3)

and

12(4)

of

the

Petition

to

be

unexhausted, and Grounds 1 and 2 to be procedurally
barred, and is otherwise consistent with this opinion
(Dkt. No. 68);
2).

CONCLUDES
unexhausted

that

the

Grounds

petitioner
10(14),

12(3)

has
and

abandoned
12(4)

of

the
the

Petition;
3).

DISMISSES WITH PREJUDICE Grounds 1 and 2 of the Petition
(Dkt. No. 13);

4).

DENIES as MOOT the respondent’s motion to dismiss (Dkt.
No. 53);

5).

DENIES as MOOT the petitioner’s clarified motion for the
Court to expedite review (Dkt. No. 66);

29

PROPHET V. BALLARD

1:16CV178

MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT AND
RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 53] AND REMANDING THE CASE
6).

DENIES as MOOT the petitioner’s motion for the district
judge to direct the magistrate judge to expedite review
(Dkt. No. 67);

7).

GRANTS the petitioner’s motion for leave to exceed the
page limit (Dkt. No. 70); and

8).

REMANDS the case to the Honorable Michael J. Aloi, United
States Magistrate Judge, for consideration of the merits
of

petitioner’s

remaining

claims

3-9,

10(1)-10(13),

10(15)-10(16), 11, 12(1)-12(3), and 13.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to the pro se petitioner, certified mail,
return receipt requested.
DATED: March 28, 2018.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

30