Prophet v. Ballard

Filing 99

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION ECF NO. 96 , OVERRULING PETITIONERS OBJECTIONS ECF NO. 98 , GRANTING MOTION FOR SUMMARY JUDGMENT ECF NO. 81 , AND DENYING AND DISMISSING § 2254 PETITION ECF NO. 13 . The Clerk is directed to enter a separate judgment order in this matter.Signed by District Judge Thomas S. Kleeh on 8/19/19. (copy PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 8/19/2019: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG

ANTONIO PROPHET,
Petitioner,
v.

Civ. Action No. 1:16-cv-178
(Judge Kleeh)

RALPH TERRY,
Acting Warden,
Respondent.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Pending before the Court is United States Magistrate Judge
Michael J. Aloi’s Report and Recommendation (“R&R”) concerning the
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody filed by pro se Petitioner Antonio Prophet
(“Petitioner”). Judge Aloi recommends that the Court grant the
Respondent’s Motion for Summary Judgment. For the reasons set forth
below,

the

Court

adopts

the

R&R,

overrules

Petitioner’s

objections, grants the Motion for Summary Judgment, and denies and
dismisses the petition.
I.

BACKGROUND

In 2012, a jury in the Circuit Court of Berkeley County, West
Virginia,

convicted

Petitioner

of

two

counts

of

first-degree

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
murder 1 and one count of first-degree arson. ECF No. 13-3 at 4.
The

jury

did

not

recommend

mercy

on

either

of

the

murder

convictions. ECF No. 13-2 at 3. The trial court sentenced him to
a determinate term of life without the possibility of parole on
each murder conviction and to a determinate term of twenty (20)
years

on

the

arson

conviction,

with

all

sentences

to

run

consecutively. Id.
Petitioner appealed his conviction to the Supreme Court of
Appeals of West Virginia (“SCAWV”), which affirmed the trial
court’s conviction. ECF No. 52-15. Meanwhile, he petitioned the
Circuit Court of Berkeley County for a writ of habeas corpus, which
it

summarily

dismissed

after

directing

Respondent

to

answer

certain claims. ECF Nos. 13-3, 13-4. Petitioner appealed the
summary dismissal

to

the

SCAWV,

which

denied

him

relief

via

Memorandum Decision. ECF No. 13-2.
Petitioner filed a pro se § 2254 petition in this Court on
September 2, 2016. ECF No. 13. Per Judge Aloi’s March 28, 2018,
Order, the only claims remaining for consideration are Grounds 3–

1

Petitioner was charged with the murder of Angela Devonshire
(“Angela”) and her three-year-old son, Andre White (“Andre”).
2

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
9, 10(1)–10(13), 10(15)–10(16), 11, 12(1)–12(3), and 13, along
with all subparts to each. See ECF No. 73 at 30.
Ralph Terry, the Respondent and Acting Warden at Mount Olive
Correctional Complex (“Respondent”), filed a Motion for Summary
Judgment on May 3, 2018, arguing that the petition should be
dismissed because Petitioner failed to state a claim upon which
relief can be granted. ECF No. 81. Petitioner filed a Response.
ECF No. 90. Judge Aloi then entered his R&R, recommending that the
Court grant Respondent’s Motion for Summary Judgment and deny and
dismiss the petition. ECF No. 96.
On March 6, 2019, Petitioner filed objections to the R&R. ECF
No. 98. He makes the following objections:
OBJECTION 1: To certain
Aloi’s factual findings;

portions

of

Judge

OBJECTION 2: To Judge Aloi’s analysis and
legal determinations in Grounds 3, 4 (and all
sub grounds), 5, 7 (and all sub grounds), 8
(and all sub grounds), 9, 10 (and all sub
grounds), 11, 12 (and all sub grounds), and
13;
OBJECTION 3: To Judge Aloi’s “grouping” of
Petitioner’s claims “by type” — specifically
as to his Ground 4 claim — and to how Judge
Aloi failed to state in his R&R how the
prosecutorial
remarks
challenged
by
3

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Petitioner in Ground 4 are not post-Miranda
silence remarks in violation of Doyle;
OBJECTION 4: To Judge Aloi’s deliberate
distortion of the record (altering the
chronological order of a significant verbal
interaction at trial);
OBJECTION 5: To Judge Aloi’s misapprehension
of Petitioner’s Ground 4(3) claim;
OBJECTION
6:
To
Judge
Aloi’s
repeated
assertion that the petition “completely fails
to identify what specific acts the Petitioner
is alleging” in his Ground 7 and Ground 8
claims;
OBJECTION 7: To Judge Aloi’s cherry-picking of
specific acts of misconduct alleged in
Petitioner’s Ground 7 and Ground 8 claims;
OBJECTION 8: To Judge Aloi’s failure to abide
by the law regarding the granting of summary
judgment; and
OBJECTION 9: To Judge Aloi’s current and
possible future participation in the matter.
See ECF No. 98.
II.

STANDARD OF REVIEW

When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
4

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the [parties do] not object.” Dellarcirprete 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
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). Here, due to
the broad scope of Petitioner’s objections, the Court will review
de novo the merits of all remaining grounds. Plaintiff’s Complaint
will be liberally construed because he is proceeding pro se. See
Estelle v. Gamble, 429 U.S. 97 (1976).
Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of
‘the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material
5

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
nonmoving party must “make a sufficient showing on an essential
element of her case with respect to which she has the burden of
proof.” Id. Summary judgment is proper “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the
non-moving party, there [being] no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288 (1968)).
III. DISCUSSION
Habeas relief is available under 28 U.S.C. § 2254 to state
prisoners in “custody in violation of the Constitution or laws or
treaties of the United States.” 2 Habeas relief under § 2254 is only
appropriate when the state court’s adjudication of the claim either

2

Violations of state law or procedure that do not implicate a
specific federal provision do not warrant habeas review. See
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (writing that “it is
not the province of a federal habeas court to reexamine statecourt determinations on state-law questions” and that “[i]n
conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties
of the United States”). “It is axiomatic that federal courts may
intervene in the state judicial process only to correct wrongs of
a constitutional dimension.” Wainwright v. Goode, 464 U.S. 78, 83
(1983).
6

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
(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,” 3 or (2)
“resulted

in

a

decision

that

was

based

on

an

unreasonable

determination of the facts in light of the evidence presented in
the State court proceeding.” 4 28 U.S.C. § 2254(d)(1)–(2).
This Court may grant relief under the “contrary to” clause
“if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor,
529

U.S.

362,

412–13

(2000).

It

may

grant

relief

under

the

“unreasonable application” clause “if the state court identifies
the correct governing legal principal from this Court’s decisions
but

unreasonably

applies

that

principle

to

the

facts

of

the

prisoner’s case.” Id. at 365. Section 2254 also provides that the
“State court shall be presumed to be correct” and that “[t]he
applicant shall have the burden of rebutting the presumption of

3
4

This is referred to as the “contrary to” clause.
This is referred to as the “unreasonable application” clause.
7

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
correctness

by

clear

and

convincing

evidence.”

28

U.S.C.

§ 2254(e)(1).
A petitioner must exhaust his remedies in the courts of the
state before seeking § 2254 review. Id. § 2254(b). To exhaust his
remedies, a federal habeas petitioner must have presented all
federal claims, in federal terms, to the highest state court before
presenting them for federal habeas review. Picard v. Connor, 404
U.S. 270, 275 (1971). Thus, to exhaust a claim in state court, a
petitioner

must

“expressly

raise[]

that

same

federal

constitutional claim in state court that he raises in federal
court.” Diaz v. Weisner, No. 3:06CV81-1-MU, 2006 WL 2224292, at
*11 (W.D.N.C. Aug. 1, 2006).
Here, Petitioner states that he has exhausted his state
remedies because all grounds in the petition have been presented
to West Virginia’s highest court. ECF No. 13 at 15. Petitioner has
alleged

seven

Misconduct;
Evidence;
Ineffective

general

(B)
(D)

types

Judicial

Ineffective

Assistance

of

of

claims:

(A)

Bias/Misconduct;
Assistance
Appellate

of

Prosecutorial

(C)

Trial

Counsel;

Insufficient
Counsel;

(F)

Denial

(E)
of

Meaningful Appellate and Post-Conviction Collateral Review; and
8

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
(G) Cumulative Error. The Court has sorted the counts based on
their “type” and will analyze them under each type’s governing
law. The Court will examine in turn each ground alleged in the
petition that remains for consideration.
A.

PROSECUTORIAL MISCONDUCT
In determining whether a prosecutor’s actions during trial

warrant habeas relief, “[t]he relevant question is whether the
prosecutor’s comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Darden v.
Wainwright,

477

U.S.

168,

181

(1986)

(quoting

Donnelly

v.

DeChristoforo, 416 U.S. 637, 643 (1974)). The Fourth Circuit has
established a two-pronged test to apply in answering this question.
First, the defendant must show that the prosecutor’s remarks were
improper. United States v. Wilson, 135 F.3d 291, 297 (4th Cir.
1998). Second, he must show that the remarks prejudicially affected
the defendant’s substantial rights so as to deprive him of a fair
trial. Id. Several factors influence this determination, and no
one factor is dispositive. The Court considers “(1) the degree to
which the prosecutor’s remarks have a tendency to mislead a jury
and prejudice the accused; (2) whether the remarks were isolated
9

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
or extensive; (3) absent the remarks, the strength of competent
proof introduced to establish guilt of accused; and (4) whether
comments

were

deliberately

placed

before

the

jury

to

divert

attention from extraneous matters.” Id. at 299 (citing United
States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)). It also
considers “(5) whether the prosecutor’s remarks were invited by
improper conduct of defense counsel, and (6) whether curative
instructions were given to the jury[.]” Id. (citing United States
v. Young, 470 U.S. 1, 12–13 (1985), and United States v. Harrison,
716 F.2d 1050, 1053 (4th Cir. 1983) (internal citations omitted)).
The Supreme Court of the United States has indicated that “a
criminal conviction is not to be lightly overturned on the basis
of a prosecutor’s comments standing alone, for the statements or
conduct must be viewed in context; only by so doing can it be
determined whether prosecutor’s conduct affected the fairness of
the trial.” Young, 470 U.S. at 11. Courts have applied the “invited
response” or “invited reply” rule, which looks at the remarks
within the context of the entire trial to determine whether the
prosecutor’s behavior amounted to prejudicial error. Id. at 11–
12.

Turning

to

the

specific

claims
10

alleged

as

prosecutorial

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
misconduct, the Court finds that none of the prosecutor’s alleged
actions so infected the trial with unfairness as to make the
resulting conviction a denial of due process. Petitioner has not
shown

that

unreasonable

the

SCAWV’s

application

dismissal
of

the

of

these

law

or

claims
an

was

an

unreasonable

determination of the facts. As discussed below, he is not entitled
to § 2254 relief on his prosecutorial misconduct claims.
Ground 3
Specifically, Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor knowingly used false testimony
from Joseph Medina (“Medina”) to obtain convictions. ECF No. 13 at
10.
A defendant’s right to due process is violated when “the
prosecution’s

case

included

perjured

testimony

and

‘the

prosecution knew, or should have known, of the perjury.’” Jones v.
Seifert, 808 F. Supp. 2d 900, 920 (S.D.W. Va. 2011) (citing United
States v. Agurs, 427 U.S. 97, 103 (1976)). To obtain relief based
on such a violation, a petitioner must “demonstrate in his petition
for habeas corpus (1) that a witness made a false statement; (2)
11

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
that the false statement was material; and (3) that the false
testimony

was

knowingly

and

intentionally

employed

by

the

government in order to obtain a conviction.” Leigh v. United
States, No. 3:04CV22, 2005 WL 1334568, at *6 (N.D.W. Va. June 3,
2005) (citing Beasley v. Holland, 649 F. Supp. 561, 566 (S.D.W.
Va. 1986)). Importantly, “[m]ere inconsistencies in testimony by
government witnesses do not establish the government’s knowing use
of false testimony.” United States v. Griley, 814 F.2d 967, 971
(4th Cir. 1987). “The credibility of witnesses is within the sole
province of the jury and is not subject to further judicial
scrutiny.” Beasley, 649 F. Supp. at 566.
Here, the SCAWV found that Petitioner “failed to show that
the prosecutor presented false testimony,” noting that there was
“no conclusive evidence that Medina’s trial testimony was false.”
ECF No. 52-15 at 27. The court acknowledged that there were
inconsistencies between Medina’s prior statements to police and
Medina’s testimony at trial but found that the inconsistencies did
not

amount

to

a

false

statement

at

trial.

Id.

Petitioner’s

inconsistent statements could mean that he lied previously and was
not lying at trial. Id. The SCAWV noted that “[t]hese are areas
12

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
which

are

appropriate

for

vigorous

cross

examination,”

and

Petitioner’s counsel attacked Medina’s credibility during cross
examination. Id. at 28.
This Court agrees with the SCAWV. Petitioner has not cited
any factual information to support a finding that Medina lied while
testifying at trial. As Judge Aloi stated, Petitioner “has not
proven that there was any perjury, let alone that ‘the prosecution
knew, or should have known of the perjury[.]’” ECF No. 96 at 23
(citing Agurs, 427 U.S. at 103). Inconsistent testimony is not
proof of perjury. The comments did not so infect the trial with
unfairness so as to deprive Petitioner of a fair trial. The SCAWV’s
determinations

of

the

facts

and

application

of

the

law

were

reasonable as to Ground 3, and Petitioner is not entitled to relief
under § 2254.
Ground 4
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when

the

prosecutor

impeached

attacking his post-Miranda silence.

13

Petitioner’s

credibility

by

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 4(1)
Specifically,
rights

were

Petitioner

violated

alleges

when

the

that

his

prosecutor,

constitutional
during

cross

examination, repeatedly questioned him regarding his post-Miranda
silence and, during closing arguments, argued that the discrepancy
between his exculpatory story at trial and his silence at time of
arrest gave rise to a legitimate inference that the exculpatory
story was fabricated.
The Supreme Court of the United States held in Miranda v.
Arizona that the prosecution may not use statements stemming from
custodial

interrogations

of

a

suspect

unless

the

prosecution

demonstrates that it has used certain procedural safeguards. 384
U.S. 436, 478–79 (1966). To violate Miranda, police must have
obtained a statement — without using safeguards — from a suspect
while he was (1) in custody and (2) being interrogated.
If a defendant testifies at trial and tells an exculpatory
version of events, the State may not use his post-Miranda silence
to impeach him. See Buckner v. Polk, 453 F.3d 195, 208 (4th Cir.
2006). However, there is a difference between post-Miranda silence
and pre-Miranda silence. “Common law traditionally has allowed
14

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
witnesses to be impeached by their previous failure to state a
fact in circumstances in which that fact naturally would have been
asserted.” Jenkins v. Anderson, 447 U.S. 231, 239 (1980). The
Jenkins Court held that “impeachment by use of prearrest silence
does not violate the Fourteenth Amendment.” Id. at 240. “Each
jurisdiction may formulate its own rules of evidence to determine
when prior silence is so inconsistent with present statements that
impeachment by reference to such silence is probative.” Id. at
239.
Here,

at

trial,

Petitioner

testified

to

an

exculpatory

version of events. The following includes the relevant portions of
the trial transcript during cross examination, some of which was
included by Petitioner in his briefing:
Q. And you told us today that you wrote this
work of fiction and you’ve told us this story
that you’ve told us about what happened on the
night of the events and that particular story
was never told to anyone of law enforcement —
MR. MANFORD: Objection.
Q: — or otherwise.
THE COURT: Hold on. There’s an objection.
MR. MANFORD: I may be totally wrong but — can
we have a short sidebar?
15

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

THE COURT: Sure.
(Conference at the bench)
MR. MANFORD: I could be wrong but isn’t that
commenting on prior statements? She’s trying
to say you didn’t tell anybody about that.
That’s his right until he comes to court.
THE COURT: He can say why he didn’t do it, but
I think she’s entitled to say this is the first
time it has come up, yeah.
MR. MANFORD: So I’m not arguing again, but I
had this in another case in Morgan County
where the prosecutor made a reference to the
Defendant never . . .
THE COURT: Exercising his right to silence to
the police officer. She can’t say you never
told it to the police or anything like that.
Did you ever tell it to anyone. You can’t say
when the police got you[,] you didn’t tell
them that, did you. This is one of those cases
where there could be an exception because he
did make contact after the event to Mr.
Devonshire[,] and she could say why didn’t you
tell him[,] but you can’t — pre-arrest silence
is
not
the
same
as
post-arrest.
It’s
statements
to
law
enforcement
that
is
exercising your right to silence so you can’t
ask him about anything about law enforcement.
MR. MANFORD: Okay.
THE COURT: But you can say he contacted Mr.
Devonshire after and you didn’t tell him
things like that because that’s not exercising
your right to silence.
16

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

MR. MANFORD: I agree.
THE COURT: Pre-arrest. Pre-arrest silence is
allowed in. Post-arrest silence isn’t.
MR. PREZIOSO: After he was arrested.
MR. PREZIOSO: After he was arrested he did —
[Lieutenant] Harmison did try to interview him
and he asserted his Fifth Amendment right.
THE COURT: All of that stays out. It has to be
pre-arrest.
MR. MANFORD: That was two years ago, right.
Your Honor, just so we have a time, pre-arrest
silence was two years ago.
THE COURT: Unless he made a statement to
someone — I mean, if it’s — if it’s non-law
enforcement he made a statement.
MR. MANFORD: Some snitch in the jail, sure.
THE COURT: Or something like that, but prearrest silence does not — the Fifth Amendment
has not attached —
MR. MANFORD: I agree.
THE COURT: So pre-arrest silence.
MR. MANFORD: You’re at your own peril if you
talk to someone.
THE
COURT:
Right.
enforcement outside.

Or

(In open court.)
17

someone

non-law

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]

MS. GAMES-NEELY: (resumed)
Q: You did not tell anyone the story that you
told us yesterday prior to taking the stand;
is that correct?
A: That’s incorrect.
MR. MANFORD: Objection. Move to strike based
on the ruling. Unless I totally misunderstood
what the Court —
THE COURT: Well, no. What I said — I’m going
to allow that and leave it at that. I will
overrule the objection based on that.
MS. GAMES-NEELY: (resumed)
Q: Did you, in fact, contact Sidney Devonshire
— and I will put this back up on the overhead.
The jury has already seen this. I’m going to
show you Defendant’s Exhibit Number Nine, sir,
and ask if you recognize that text message.
THE COURT: It’s
identified it.

already

in.

he’s

already

A: Yes, ma’am.
Q: That is the text message that you sent to
Sidney Devonshire; is that right?
A: That is correct.
Q: And that text message has what date on it?
A: June 7th, 2010, 7:53 p.m.
A: And on that particular text message, sir,
18

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
do you describe to him what you’ve described
on that witness stand?
A: No, ma’am.
Q: Did you call Sidney Devonshire and tell
Sidney Devonshire what information you had
regarding the murder of his daughter and his
grandson?
A: No, ma’am.
ECF No. 52-31 at 33–37. The next portion of the transcript, which
Petitioner cites in part, is as follows:
Q: And in this instance, you’ve had two years
to make up this story.
A: I didn’t make up any story, ma’am.
Q: And you’ve had two years to review all the
discovery, all of the pieces, all of the
elements —
A: I didn’t —
Q: — before you came here to testify?
A: I didn’t make up any story, ma’am.
Q: But you’ve had two years to
absolutely every detail of this case.

review

A: If you want to look at it like that, yes,
ma’am.
Id. at 157.
Finally, the prosecutor made the following remarks to the
19

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
jury during closing arguments:
He studied the records. In every criminal case
in West Virginia the State must hand to the
defendant everything we know about this case.
He has had two years to go through each and
every record in this case, each and every
phone record, each and every cell record, each
and every statement. Everything we have he’s
had the opportunity to do it. As any author
will tell you, they study their craft, how
does A fit into B, and how can I best convince
somebody else to do this. Let’s face it, he’s
facing a life sentence. If he doesn’t sell the
book, if he doesn’t sell his story, ladies and
gentlemen, he’s facing a life sentence. He has
a reason to create and craft a story. And
that’s what it is. It is a story.
Don’t be convinced by somebody who takes the
stand and somebody who is slick, can tell a
story, can sit up there and weave his craft in
front of you as if he’s reading his own novel
. . . .
. . .
He never tells a living soul his story until
he takes that stand.
. . .
Remember that? He’s got two years to craft his
story.
. . .
He waits to be on the stand to craft his story.
All of his pieces fit. They fit because you
can look at every piece of evidence and go oh,
20

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
this must be what happened. This must be what
happened. This may be what happened.
. . .
He’s crafted his story. He sat there slicked
and polished after two years and wrote his
story because if he fails in this story he
goes to prison for the rest of his life so
connect all the little dots.
. . .
It’s a story. He wrote a tale and he sat upon
the witness stand and he told you that tale
after he looked at every sheet of paper that
he went over it mile after mile, and he weaved
and crafted it into a fine story.
ECF No. 52-32 at 42–43; 54; 55; 64–65; 107; 108.
These excerpts from the record indicate that the trial judge
told the prosecutor that she could not comment on Petitioner’s
post-arrest silence to law enforcement. The prosecutor did not ask
Petitioner about his silence to law enforcement upon arrest. When
she asked him if he had told his story to anyone in law enforcement,
defense counsel objected, prompting the original sidebar. She then
asked Petitioner if he told “anyone” his version of events, and
she asked him, specifically, if he told Angela’s father his version
of events.
The SCAWV recognized that some of the state’s questions
21

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
“potentially

could

have

been

construed

as

referring

to

the

petitioner’s post-arrest silence” but “also could simply have been
a general initial question for the prosecutor’s line of questioning
regarding petitioner’s pre-arrest discussion with Mr. Devonshire.”
ECF No. 52-15 at 24. The SCAWV wrote that “[t]he question was
ambiguous and isolated, and the prosecutor did not pursue this
question improperly into the realm of post-arrest silence.” Id.
This Court agrees with the SCAWV’s determinations. Comments
or lack of comments made to Angela’s father do not warrant Miranda
warnings

and,

thus,

are

proper

questioning

territory

for

a

prosecutor to explore. The other questions asked by the prosecutor
(i.e. “Did you mention to anyone . . .”) could be construed as
either pre- or post-arrest, and the state court’s determination
that they are pre-arrest was reasonable. It is also reasonable
that the state court would find that even if the comments were
post-arrest, they were ambiguous and isolated and did not infect
the trial with unfairness as to violate due process. The SCAWV’s
factual determinations and application of the law as to Ground
4(1) are reasonable, and Petitioner is not entitled to relief.

22

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 4(2)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when

the

prosecutor,

mandated

cross

examination

and

closing

repeatedly

arguments,

during
asserted

that

Petitioner’s

due

process

entitlement

to

discovery

evidence

deceiving

the

jury.

The

comments

relevant

included

above

in

Ground

4(1).

Petitioner

had
to

aided

this

has

him

claim

cited

no

in
are
law

indicating that a prosecutor may not comment on his right to review
discovery. Regardless, the comments were isolated and did not so
infect

the

trial

with

unfairness

as

to

make

the

resulting

conviction a denial of due process. On this issue, the SCAWV’s
application of law and determination of facts were reasonable.
Therefore, the Court finds that this claim is without merit.
Ground 4(3)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when

the

prosecutor,

during

cross

examination

and

closing

arguments, “implicitly and illicitly utilized the privileges of
the

attorney-client

relationship
23

to

the

detriment

of

the

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Petitioner.” His petition does not indicate what specific behavior
he is referencing.
Petitioner,

in

his

objections,

clarifies

that

he

“is

asserting that the State gave to the Petitioner absolutely no
evidence at all – they gave it to his attorneys[.]” ECF No. 98 at
7. When Petitioner reviewed the State’s evidence, he did so during
a “privileged consultation with his attorneys.” Id. Petitioner
believes that the prosecutor improperly referenced his right to
review the evidence against him and violated his rights to due
process and effective assistance of counsel.
The prosecutor referenced Petitioner’s ability to review the
evidence for two years in order to come up with a story to avoid
conviction. The relevant portions of the trial transcript are
listed above in the Ground 4(1) section. Petitioner has cited no
law supporting his argument that a prosecutor may not comment, due
to attorney-client privilege, on a petitioner’s right to review
evidence.

Even

so,

the

Court

finds

that

these

comments

were

isolated and did not so infect the trial with unfairness as to
make the resulting conviction a denial of due process. The SCAWV’s
application of law and determination of facts were reasonable.
24

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Therefore, this claim is without merit.
Ground 4(4)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when the prosecutor, during closing arguments, repeatedly accused
Petitioner of lying under oath (i.e. committing perjury).
Rule 611(b) of the Federal Rules of Evidence states that a
party witness may be cross-examined on “matters affecting the
witness’s credibility.” Further, “[i]t is a well-settled rule that
a

defendant

who

voluntarily

offers

himself

as

a

witness

and

testifies in his own behalf subjects himself to legitimate and
pertinent cross-examination to test his veracity and credibility.”
United States v. Ling, 581 F.2d 1118, 1120 (4th Cir. 1978).
When Petitioner chose to testify at trial, he brought his
credibility into issue. The jury was also instructed that the
comments and arguments of counsel are not evidence and that the
jurors were to decide the case based solely on the evidence. ECF
No. 52-28 at 180-81; ECF 52-32 at 24. The prosecutor may comment
during closing argument on Petitioner’s credibility. Her remarks
were based on the evidence presented.
25

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Petitioner

has

not

demonstrated

that

the

prosecutor’s

comments were so fundamentally unfair as to deny him due process.
He has not articulated any unreasonable application of federal law
during the state proceedings, and he has not shown that the court’s
adjudication resulted in a decision based on an unreasonable
determination

of

the

facts.

Therefore,

Petitioner

has

not

established that he is entitled to relief on this claim.
Ground 5
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when the State introduced evidence of a violent fictional novel
previously authored by Petitioner. Petitioner argues that this
evidence “had no legitimate bearing on any issue at trial” and was
so unduly prejudicial that it rendered the trial unfair.
Here, before trial, the parties stipulated that the State
would not use Petitioner’s novel in its case-in-chief but that the
State could refer to the novel in any rebuttal it might present.
ECF No. 52-15 at 12–13. During cross examination of Petitioner,
the prosecutor questioned him regarding his novel. Defense counsel
objected, and in a side bar, the prosecutor explained:
26

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
MS. GAMES-NEELY: This book is a compilation of
quite frankly it is the story of a drug war
that is going on with an individual named
Yahoo who is trying to get out of the drug
trade.
THE COURT: Tell me what you want to use it
for.
MS. GAMES-NEELY: What I’m using it for in this
instance, Your Honor, is it talks about in a
particular area involving Mafia portion of the
drug war that there was a fire which an
individual was killed, burned, so there was no
criminal evidence remaining. It talks about
knives being used to slice individuals’
throats, and it also discusses in this
incident that the primary character in this
instance had — an individual who was kind of
a mystery person that was going around who
executed this family specifically his wife and
the daughter in this instance. The young
daughter does survive for a period of time but
the wife was executed as well.
THE COURT: Well, I think the biggest relevance
is here we’re going to credibility. Once you
put your client on the stand it goes to
credibility. The State’s theory is this is all
made up, his whole story is made up. If they
can show he’s previously written a book that
involves drugs and somebody being killed and
things like that I think they’re entitled to
explore into that. It’s not fair to say we had
to put our client on the stand and say this
and not to say the State is entitled to say
27

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
wait a minute, he has written about this stuff
before, just pigeon holed into it.
MR. PREZIOSO: I would respectfully say are we
impeaching him with fiction?
THE COURT: Not at all. We’re not saying — we’re
not impeaching what he’s saying how is somehow
different than what was said before which is
impeachment. What we’re saying is — what
you’re telling us now isn’t that consistent
with what you said before in some way so it’s
not impeachment whatsoever.
ECF No. 52-31 at 19–21. The trial judge added the following, while
the parties were still having a side bar:
Let me say this. You all got in his statements
— I allowed you to get his statement in to 911
which is a perfect act of fiction because it
says Joseph Medina is going to kill a family
tonight and nobody was killed that night. So
it’s a prior so you have to let that in . . . I
think that it’s very probative and on the
matter and the jury should be allowed to hear
it because they are the ones that have to go
back there and judge credibility of the
witnesses on the testimony.
Id. at 24–25. The prosecutor then questioned Petitioner on facts
of

the

story

that

were

similar

to

the

facts

in

his

case.

Specifically, the prosecutor questioned him about the idea that a
fire could destroy evidence of crimes, that violence was inherent
28

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
in drug culture, and that “[p]eople get their throats slit.” Id.
at 26–30.
In analyzing this line of questioning, the SCAWV found that
the prosecutor “characterized the petitioner as a writer of crime
fiction who had two years to parse every piece of the State’s
evidence in his case and to fabricate a story consistent with the
State’s evidence.” ECF No. 52-15 at 13. Therefore, the SCAWV found
that the admission of this evidence was proper on cross-examination
under Rule 611(b)(1) of the State Virginia Rules of Evidence and
State v. Bradshaw, 457 S.E.2d 456 (W. Va. 1995). The court also
found that the State’s use of the novel to attack Petitioner’s
credibility

outweighed

the

unfair

prejudice

from

doing

so.

Finally, the SCAWV determined that the line of questioning was not
improper under Rule 404 and 608(b) of the West Virginia Rules of
Evidence.
As discussed above, Petitioner put his credibility in issue
when he chose to testify at his trial. The State used the novel to
attack

Petitioner’s

credibility.

As

such,

Petitioner

has

not

established that the trial court denied him a fundamentally fair
trial by allowing this line of questioning. He has not demonstrated
29

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
that the trial court’s or SCAWV’s rulings were either erroneous or
“so extreme as to result in a denial of a constitutionally fair
proceeding.” The SCAWV’s factual determinations and application of
the law as to Ground 5 are reasonable, and Petitioner is not
entitled to relief.
Ground 7
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when the prosecutor made improper remarks in front of the jury.
Ground 7(1)
Specifically, Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor attacked, in front of the jury,
Petitioner’s constitutional rights to silence, to counsel, and to
evidence. This is the same argument proffered by Petitioner in
Ground 4, and the Court finds it is without merit for the same
reasons as listed above.
Ground 7(2)
In Ground 7(2), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
30

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
were violated when the prosecutor used her position and status to
undermine Petitioner’s credibility and testimony and to bolster
the testimony of the State’s witness. Petitioner does not cite any
specific instances in the record.
As discussed in Ground 4(4), Petitioner put his credibility
in issue when he chose to testify and subject himself to crossexamination. The prosecutor is constitutionally permitted to make
comments about a witness’s credibility. Petitioner has not shown
that the SCAWV’s decision was unreasonable as to its application
of federal law or determination of facts, and, therefore, he is
not entitled to relief. This ground is without merit for the same
reasons discussed in Ground 4(4).
Ground 7(3)
In Ground 7(3), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor knowingly elicited and utilized
false testimony to secure a conviction. This is the same argument
proffered by Petitioner in Ground 3, and the Court finds it is
without merit for the same reasons as listed above.

31

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 7(4)
In Ground 7(4), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor used portions of Petitioner’s
fictional novel as evidence, unduly prejudicing Petitioner. This
is the same argument proffered by Petitioner in Ground 5, and the
Court finds it is without merit for the same reasons as listed
above.
Ground 7(5)
In Ground 7(5), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor misused portions of Petitioner’s
fictional novel as evidence, unduly prejudicing Petitioner. This
is the same argument proffered by Petitioner in Ground 5, and the
Court finds it is without merit for the same reasons as listed
above.
Ground 7(6)
In Ground 7(6), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor misquoted witnesses’ testimony,
32

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
including Petitioner’s testimony, in order to prejudice him.
The petition does not mention specific examples. Petitioner’s
Response,

however,

provides

some

clarification.

He

cites

the

following portions of trial, during which he claims that the
prosecutor misquoted witnesses’ testimony in order to prejudice
him:
•

The prosecutor’s statement that witness
Katie Draughton testified that Petitioner
told her he had been robbed in the woods in
Summer Hill;

•

The prosecutor’s statement that Chareese
Davis had testified that Petitioner asked
her for $300;

•

The prosecutor’s statement that Angela’s
children’s father, Andre White, was in
Hagerstown, Maryland, on the night of the
crime, which gave Andre White an alibi; and

•

The
prosecutor’s
“chopp[ing]
up
and
deliberately
alter[ing]”
portions
of
Petitioner’s testimony to make the jury
believe
he
had
given
inconsistent
statements.

ECF No. 90 at 23–26.
The SCAWV found that “[a]ny improper comments were isolated,
were

not

deliberately

placed

before

the

jury

to

divert

its

attention to extraneous matters, and did not have a tendency to
33

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
mislead the jury or prejudice the petitioner.” ECF No. 52-15 at
30. This Court agrees. Petitioner has not shown that the SCAWV’s
decision is an unreasonable application of federal law or an
unreasonable determination of fact with regard to any of these
prosecutorial statements, and, therefore, he is not entitled to
relief.
Ground 7(7)
In Ground 7(7), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor argued facts not in evidence.
The petition does not cite any facts in support. A review of
Petitioner’s Response indicates that he was concerned about the
following comments by the prosecutor:
•

That paramedics saw no soot on Daronte’s
shirt;

•

That both Angela’s and Andre’s throats had
been cut; and

•

That “[n]one of the neighbors hear this
mystery car.”

ECF No. 90 at 26–27.
The

SCAWV

found

that

these
34

comments

did

not

arise

to

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
prosecutorial misconduct and that “[a]ny improper comments were
isolated, were not deliberately placed before the jury to divert
its attention to extraneous matters, and did not have a tendency
to mislead the jury or prejudice the petitioner.” ECF No. 52-15 at
30.

As

Judge

statements

Aloi

were

noted,
not

“it

is

apparent

misstatements,

or

that
at

these

three

worst,

were

unintentional, minor misstatements, that were not material to the
prosecution, or were not prejudicial to Petitioner.” ECF No. 96 at
47. This Court agrees. Petitioner has not shown that the SCAWV’s
decision was an unreasonable application of law or an unreasonable
determination of fact, and he is not entitled to relief.
Ground 7(8)
In Ground 7(8), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor inundated the jury with improper
remarks

during

closing

arguments.

This

is

the

same

argument

proffered by Petitioner in Grounds 4 and 5, and the Court finds it
is without merit for the same reasons as listed above.

35

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 7(9)
In Ground 7(9), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the prosecutor engaged in other gross misconduct
that unduly prejudiced Petitioner. This is the same argument
proffered by Petitioner in Grounds 4 and 5, and the Court finds it
is without merit for the same reasons as listed above.
B.

JUDICIAL MISCONDUCT
“Due process secures a criminal defendant’s right to an

impartial trial judge.” Smith v. Mirandy, No: 2:14-cv-18928, 2016
WL 1274592, at *25 (S.D.W. Va. Mar. 31, 2016) (citations omitted).
In order for a trial to constitute a denial of due process based
on judicial behavior, “a [petitioner] must show a level of bias
that made ‘fair judgment impossible.’” Rowsey v. Lee, 327 F.3d
335, 341 (4th Cir. 2003). If a trial judge’s behavior “reaches
such a level of prejudice” that a defendant is denied a fair trial,
a new trial is required. United States v. Parodi, 703 F.2d 768,
776 (4th Cir. 1983) (citation omitted).

Here, Petitioner has

not met his burden in alleging that judicial misconduct occurred
during his trial. AS discussed below, the Court finds that his
36

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
judicial misconduct claims must be dismissed.
Ground 6
In Ground 6, Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial court refused to give the jury an
instruction proffered by Petitioner that described Petitioner’s
theory of the case.
Generally, jury instructions are matters of state law and
procedure and do not invoke federal constitutional guarantees. See
McGuire, 502 U.S. at 71–72. However, when circumstances impede the
fundamental fairness of the trial and impinge on constitutional
protections, a federal habeas court may review them. See Marshall
v. Lonberger, 459 U.S. 422 (1983).
Petitioner’s requested instruction was based upon Syllabus
Point 2 of State v. Dobbs, 259 S.E.2d 829 (1979), which provides
that “[c]ircumstantial evidence will not support a guilty verdict,
unless the fact of guilt is proved to the exclusion of every
reasonable hypothesis of innocence; and circumstances which create
only a suspicion of guilt but do not prove the actual commission
of the crime charged, are not sufficient to sustain a conviction.”
37

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
This was overruled in State v. Guthrie when the SCAWV wrote that
“there

is

no

qualitative

difference

between

direct

and

circumstantial evidence.” 461 S.E.2d 163, 175 (W. Va. 1995). The
court further stated that there is “only one standard of proof in
criminal cases and that is proof beyond a reasonable doubt.” Id.
Importantly, “an additional instruction on circumstantial evidence
is

no

longer

required

even

if

the

State

relies

wholly

circumstantial evidence.” Id.
A review of the trial transcript provides the following:
THE COURT: Morning. Let’s go on and I
understand
there’s
some
objections
instructions.

to

MR. PREZIOSO: Well, Judge, if I could. I read
through
here.
I
didn’t
even
find
a
typographical
error
in
any
of
these
instructions. I think they are, in complete
candor to the Court, correct, and the way you
said it malice, I don’t have any problem or
objection with that because there’s different
malice for the murder and then the arson.
I went out and spoke to Mr. Prophet. He
reviewed the instructions. He sought to have
his own instruction added that I submitted to
Court and Counsel. Again, the law is what I
typed up. To give you an understanding is from
State versus Dodds which is a case that is
38

on

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
overruled. I don’t know if it’s necessary to
offer this. I think it’s contemplated in the
reasonable doubt instruction; however, Mr.
Prophet wanted to make a record of that and
wanted to offer it into the record.
THE COURT: I don’t think it’s a correct
statement of the law. I don’t think that it’s
required that all reasonable opportunity by
others to have committed the crime is the
standard. The State doesn’t have the burden
and the evidence doesn’t that all reasonable
opportunity by others to have committed it
need be proved. It may be why it was overruled.
I understand it went further on to direct
versus circumstantial, but that statement as
it’s taken in isolation like that is number
one, impractical because there’s not a
requirement of proof beyond all reasonable
doubt.
MR. PREZIOSO: I explained it to him the way
that they’re still required, of course, to
prove guilt beyond a reasonable doubt. I
explained that to him. Just note our objection
to it.
ECF No. 52-32 at 4–5.
The SCAWV found “that the circuit court’s refusal to give the
instruction from Dobbs is not in error because this language is no
longer a correct statement of the law.” ECF No. 52-15 at 25. This
Court agrees. The trial court did not deny Petitioner a fair trial
39

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
by refusing to give the requested jury instruction. Petitioner has
failed to show that the state court’s decision was based in either
an

unreasonable

factual

determination

or

an

unreasonable

application of federal law, so he is not entitled to relief on
this ground.
Ground 8
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when the trial court engaged in bias and misconduct and made
prejudicial remarks before the jury.
The Fourth Circuit has written that “‘[a] judge’s ordinary
efforts at courtroom administration — even a stern and shorttempered judge’s ordinary efforts at courtroom administration —
remain immune’ and do not establish bias or partiality.” United
States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995) (quoting
Liteky v. United States, 510 U.S. 540, 556 (1994)). Further,
“judicial remarks during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or
their

cases,

ordinarily

do

not

support

a

bias

or

partiality

challenge. . . . [T]hey will do so if they reveal such a high
40

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
degree

of

favoritism

or

antagonism

as

to

make

fair

judgment

impossible.” Liteky, 510 U.S. at 555. A trial judge, though, must
conduct himself or herself in a way that “never reaches the point
at which it appears clear to the jury that the court believes the
accused is guilty.” United States v. Ecklin, 528 F. App’x 357, 362
(4th Cir. 2013).
Ground 8(1)
Specifically, in Ground 8(1), Petitioner alleges that his
rights under the 5th, 6th, and 14th Amendments to the United States
Constitution were violated when the trial judge, prior to trial,
made an “extremely prejudicial and biased remark” in open court
regarding

Petitioner’s

guilt

and

culpability.

The

statement

Petitioner references was made during a pretrial hearing. ECF No.
52-14

at

72–73.

During

a

pretrial

hearing,

the

trial

judge,

according to Petitioner, said that Petitioner’s defense “doesn’t
hold water.” Id. at 73. This statement was outside of the purview
of a jury. It was reasonable, therefore, for the state court to
find that the remark had no bearing on Petitioner’s conviction. It
did not deprive him of a fair trial, and he is not entitled to
relief.
41

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 8(2)
In Ground 8(2), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial judge, prior to trial, manipulated
the State’s witness to strengthen the State’s case. Petitioner
seems to be referencing events somewhat explained in his Amended
Petition. Id. at 73–74. Petitioner alleges that two months before
Petitioner’s trial, in another unrelated criminal matter, the
trial judge rejected a plea deal for Medina in an unrelated case,
in which Medina had agreed to testify adversely against Petitioner
in this case. Petitioner writes, “At that time, it has been
reported that Judge Wilkes intimated that he would not accept that
negotiated plea deal for Medina because he felt that Medina had
more information than he was letting on to regarding the Petitioner
and the case against him.” Id. at 74. Petitioner alleges that the
trial

judge

effectively

“utilized
manipulate

his
or

judicial
otherwise

power

and

coerce

position
Medina

to
into

artificially strengthening the State’s case against” him. Id.
The SCAWV found that the claims of judicial misconduct, to
the extent that they are not a rehashing of assignments of error
42

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
previously presented, are “frivolous assertions of bias” that are
“deem[ed] wholly unnecessary to address.” ECF No. 52-15 at 30. The
Court finds that these allegations are at best speculative and
vague (“it has been reported . . .”), and the state court’s
application of law and determination of facts as to this claim
were reasonable. Petitioner is not entitled to relief.
Ground 8(3)
In Ground 8(3), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial judge refused to strike two biased
jurors for cause. This claim is a reiteration of the claim in
Ground 2, which has been previously found to be procedurally
barred. Therefore, the Court will not address Ground 8(3).
Ground 8(4)
In Ground 8(4), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial judge allowed the prosecutor to
present unduly prejudicial evidence in the form of Petitioner’s
novel. This is the same argument proffered by Petitioner in Ground
5, and the Court finds it is without merit for the same reasons as
43

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
listed above.
Ground 8(5)
In Ground 8(5), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial judge allowed the prosecutor to attack
Petitioner’s

post-Miranda

silence.

This

is

the

same

argument

proffered by Petitioner in Ground 4, and the Court finds it is
without merit for the same reasons as listed above.
Ground 8(6)
In Ground 8(6), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when, during cross examination, the trial judge
accused

Petitioner

of

being

argumentative,

inconsistent,

and

evasive in his answers. There are no factual allegations in the
Petition as to this claim, but Petitioner’s Response clarifies. He
is referencing the following exchange:
Q: But the floor underneath of you at that
point was not on fire; is that right?
A: What? Did I run through fire is what you’re
asking?
THE COURT: No. She asked you the floor
underneath was not on fire. Answer the
44

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
question.
WITNESS: The floor underneath. I don’t —
THE COURT: Well, previously you testified to
the fact that you didn’t look around and you
didn’t know so you have to be specific in your
answers to her questions.
WITNESS: She has to be —
THE COURT: Don’t be argumentative.
WITNESS: I’m not being argumentative. I’m just
trying to understand her question.
THE COURT: Let’s get something straight here.
You’re not going to tell me what you’re doing
or not. I’m going to. Answer her question
specifically.
ECF No. 52-31 at 112–13.
The SCAWV found that these claims, to the extent that they
are not a rehashing of assignments of error previously presented,
are “frivolous assertions of bias” that are “deem[ed] wholly
unnecessary to address.” ECF No. 52-15 at 30. The Court agrees
with

Judge

Aloi’s

findings

on

this

point:

the

trial

judge’s

statements to Petitioner during trial were “ordinary efforts at
courtroom administration” taking place when Petitioner was failing
to answer the question asked. See Castner, 50 F.3d at 1274 (quoting
Liteky,

510

U.S.

at

556)).

The
45

newly-impaneled

jury

was

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
specifically instructed by the trial judge as follows:
Anything I do shouldn’t be considered by you
as to how I think you should decide any of the
facts. That’s totally your 50 percent. My 50
percent is instructing you as to what the law
is and ruling on the admissibility of the
evidence at other trial procedure matters.
ECF No. 52-28 at 181. The trial judge’s conduct did not render the
trial unfair, and the state courts’ application of the law and
determination of facts were reasonable. This claim, therefore, is
without merit.
Ground 8(7)
In Ground 8(7), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial judge did not intervene to limit the
prosecutor’s improprieties during closing arguments. As discussed
above, Petitioner’s claims of prosecutorial misconduct are without
merit and are dismissed, so the Court will not find that the trial
judge

was

duty-bound

to

intervene

during

closing

arguments.

Therefore, this sub-ground is without merit.
Ground 8(8)
In Ground 8(8), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
46

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
were violated when the trial judge attempted to guide and advise
the prosecutor throughout the case. In the petition, Petitioner
cites no facts supporting this conclusory statement. He provides
some guidance in his Response, citing a transcript from a motion
hearing held on July 9, 2019:
THE COURT: That — now, this [911 call] came
from the Defendant’s phone and the State
doesn’t want that in to say — I’m just saying
my gosh, here is what I would do with it. I
would say — well, I don’t try the cases.
MS. GAMES-NEELY: Yes, your honor. And I know
exactly what I’m going to do with it if the
Court allows it in.
. . .
THE COURT: So what you want — in looking at
this I called the police three days in advance
to say Joseph Medina is going to commit this
crime but I’m not going to tell you he’s going
to do it to me and that I’m worried about it?
MS. GAMES-NEELY: That’s correct.
THE COURT: Wow.
. . .
THE COURT: If [the defense does somehow get
this evidence before the jury], all I can see
is looking at the jury and saying, ladies and
gentlemen of the jury, here we are on a firstdegree murder charge and we have evidence that
the Defendant used his phone to call three
47

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
days before the crime to say it was going to
happen and somebody else was going to do it.
Certainly if the jury tends to believe that
that takes care of premeditation.
MS. GAMES-NEELY: Right.
. . .
THE COURT: I can definitely see the Defense
wanting to keep [this evidence] out. Boy.
. . .
THE
COURT:
If
it’s
in
evidence
[the
prosecutor] can say — personally — well, I
think it would be great to say did you call
911 to say you were going to commit this crime.
MS. GAMES-NEELY: Exactly.
THE COURT: We all as lawyers have taken that
step off the bridge of faith and sometimes
tumbled, but Mr. Prezioso and Mr. Manford
rarely stumble if — tumble by opening the door
that way. If the — wow.
ECF No. 52-27 at 9–16. Petitioner also cites another exchange
during the trial:
MR. MANFORD: Second Objection would be subject
to the rules of Evidence how this — how would
this [novel] be relevant.
THE COURT: I don’t know. I’ve not read the
book.
MR. PREZIOSO: Exactly.
48

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
THE COURT: But I’m assuming the prosecutor has
and they can give me a proffer as to what it
is. I would anticipate she’s going to say it
somehow mirrored something he testified to.
ECF No. 52-31 at 18–19. Petitioner contends that the trial judge,
during this exchange, “essentially nudged the prosecutor into
misrepresenting this evidence during the course of trial.” ECF No.
90 at 42.
As to the first exchange, as Judge Aloi noted, it took place
during a discussion of evidentiary issues during a motions hearing,
not during trial. The court was expressing its surprise that the
State did not want the evidence of the 911 call submitted, was
discussing the pros and cons of the evidence for each side, and,
as Judge Aloi noted, “was not colluding in some fashion with the
state” in any way. ECF No. 96 at 57. As to the second exchange,
this Court has already discussed the admissibility of the novel
and will not reiterate its reasoning here. For those reasons, the
Court

finds

evidentiary

that
issues

the

state

were

courts’

not

determinations

unreasonable

as

to

on

these

factual

determinations or application of the law, and Petitioner is not
entitled to relief on this claim.

49

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 8(9)
In Ground 8(9), Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated when the trial judge engaged in other subtle conduct
to the detriment of Petitioner. Petitioner fails to identify facts
supporting this allegation. Such conclusive statements are not
sufficient to overcome summary judgment. Therefore, this claim is
without merit.
C.

INSUFFICIENCY OF THE EVIDENCE
When reviewing a claim of insufficiency of evidence, the

district court must view the evidence in the light most favorable
to the prosecution and determine whether any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Ground 9
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated
when he was convicted by evidence insufficient to establish his
guilt beyond a reasonable doubt for every element of the charged
crime. He argues that there was no evidence of premeditation and
50

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
deliberation that could establish beyond a reasonable doubt that
he committed first degree murder.
Under

West

Virginia

law,

“[a]lthough

premeditation

and

deliberation are not measured by any particular period of time,
there must be some period between the formation of the intent to
kill and the actual killing, which indicates the killing is by
prior calculation and design.” Guthrie, 461 S.E.2d at 181. “As a
practical matter, premeditation generally can be proved only by
circumstantial evidence” and “must ordinarily be inferred from the
objective facts.” State v. Larock, 470 S.E.2d 613, 624 (W. Va.
1996).
Here, after viewing the evidence in the light most favorable
to the prosecution, the Court finds that a rational trier of fact
could have found beyond a reasonable doubt that premeditation and
deliberation existed. First, Elizabeth Devonshire testified that
at 3:00 a.m. on June 6, 2010, she observed that the Angela’s
curtains were tightly closed. ECF No. 52-29 at 75. A reasonable
jury could infer that Petitioner closed the curtains so no one
would see him commit murder, which could indicate premeditation
and deliberation. Further, Petitioner testified that on June 3,
51

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
2010, he anonymously reported to the police a threat made by Medina
against the victims. ECF No. 52-30 at 246–57. A reasonable jury
could find that he did this to frame Medina for crimes Petitioner
was planning to commit, which could indicate premeditation and
deliberation. As to Andre’s death, a reasonable jury could find
that Petitioner killed Andre with premeditation and deliberation,
while sparing the infant, because a three-year-old would be able
to identify Petitioner to police. The SCAWV cited a number of these
arguments in finding that the evidence was sufficient to support
the jury’s finding that Petitioner committed premeditated and
deliberated murder. Therefore, the Court finds that the SCAWV’s
application of law and determination of facts were reasonable,
there was sufficient evidence to support Petitioner’s convictions,
and Petitioner is not entitled to relief on this claim.
D.

INEFFECTIVE ASSISTANCE OF COUNSEL
In examining a claim of ineffective assistance of counsel,

the court conducts a two-part analysis. “First, the defendant must
show

that

counsel’s

performance

was

deficient.

This

requires

showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
52

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“‘Deficient performance’ is not merely below-average performance;
rather, the attorney’s actions must fall below the wide range of
professionally competent performance.” Griffin v. Warden, 970 F.2d
1355, 1357 (4th Cir. 1992).
Second,

the

defendant

must

show

that

the

deficient

performance prejudiced the defendant. Strickland, 466 U.S. at 687.
“This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. Petitioner must show 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.
There is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant

must

overcome

the

presumption

that,

under

the

circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id. at 689.
In a § 2254 proceeding, this Court does not examine whether
the Strickland standard is met. It examines whether the state
court’s application of Strickland was unreasonable. Importantly,
53

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
an unreasonable application is different from a from an incorrect
application. Harrington v. Richter, 562 U.S. 86, 101 (2011).
Ground 10
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
the ineffective assistance of his state-appointed trial counsel.
Ground 10(1)
Specifically, Petitioner alleges that his rights under the
5th, 6th, and 14th Amendments to the United States Constitution
were violated by ineffective assistance of his state-appointed
trial

counsel

when

his

counsel

failed

to

thoroughly

and

independently investigate the crime at issue.
The petition does not specify how counsel allegedly failed to
thoroughly and independently investigate the crime. Petitioner’s
Response, however, identifies three alleged deficiencies in his
counsel’s performance: (1) failure to search the woods for “blood
evidence” to corroborate Petitioner’s claim that he had fled from
the two murderers and had hidden there; (2) failure to immediately
locate and interview Medina; and (3) failure to timely investigate
Petitioner’s claim that he had made calls to 911 and other law
54

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
enforcement agencies several days before the crimes occurred. ECF
No. 52-16 at 144–45.
After Petitioner briefed this at the trial court level, the
trial court judge found that Petitioner’s first claim failed to
show
that his blood was [actually] in the woods,
where the blood was in the woods, that he
notified counsel to investigate where to
search for blood, that counsel refused to
search for blood, or that finding his blood in
the woods somehow would have affected the
outcome of the trial.
ECF No. 52-21 at 10. Further, counsel was not appointed for at
least two weeks after the crimes were committed, so the probability
of finding blood spatter was very unlikely. Id.
Next,

the

trial

judge

noted

that

Petitioner’s

counsel

vigorously cross-examined Medina at trial and that Petitioner did
not show that contacting Medina immediately would have resulted in
a different outcome at trial. Last, the trial judge wrote that
Petitioner did not establish that he was prejudiced when his
counsel failed to investigate Petitioner’s anonymous calls to 911
days

before

the

crimes

were

committed.

Counsel

did

investigate it and used the calls as evidence at trial.
55

in

fact

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
This Court agrees with the trial court’s reasoning and the
SCAWV’s

dismissal.

Petitioner’s

counsel’s

alleged

failure

to

investigate these issues did not to the level of ineffective
assistance. Petitioner has not established that but for these
alleged errors, the result of his trial would have been different.
Accordingly, the state court’s ruling was not an unreasonable
determination of facts or an unreasonable application of federal
law, and Petitioner is not entitled to relief.
Grounds 10(2) and 10(3)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his state-appointed trial counsel when
counsel

failed

to

file

a

pretrial

motion

to

suppress

the

introduction of Petitioner’s violent fictional novel and failed to
request

a

limiting

instruction

informing

the

jury

that

Petitioner’s fictional novel was for impeachment only and not to
be considered as evidence of a material or substantive fact.
As to the motion to suppress, Petitioner’s counsel at trial
attempted to minimize the use of the novel. Both parties stipulated
that the novel could not be used in the prosecution’s opening or
56

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
case-in-chief but that the novel could be used to rebut evidence.
At trial, the prosecutor cross-examined Petitioner, using the
novel to attack his credibility. Counsel objected, but the trial
court

determined

that

the

stipulation

did

not

prevent

the

prosecution from using the novel during cross-examination and that
it was relevant to Petitioner’s credibility. ECF No. 52-15 at 13.
The trial court, in its habeas decision, even wrote that “[i]t is
clear that trial counsel tried to preclude the use of the book at
trial, and that had trial counsel done so with a written motion in
limine, the trial court’s ruling would not have been different.”
ECF No. 52-21 at 11.
Petitioner has not established that but for these alleged
errors, the result of the trial would have been different. The
state courts’ application of law and determination of the facts
were reasonable, and Petitioner is not entitled to relief on this
claim. As to the limiting instruction, again, Petitioner has failed
to show that but for the alleged failure, the outcome of the trial
would have been different. The state courts’ application of the
law and determination of facts were reasonable, and Petitioner is
not entitled to relief.
57

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Grounds 10(4) – 10(12)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his state-appointed trial counsel when
his counsel failed to object to and move for a mistrial based on
the prosecutor’s improper and unconstitutional questions about
Petitioner’s post-Miranda silence.
These issues were addressed in Grounds 4 and 5 above. The
Court has determined that Petitioner’s claims of prosecutorial
misconduct and judicial misconduct are without merit and are
dismissed. Trial counsel did object to the State’s questioning of
his pre-arrest silence, preserving the issue for appeal. ECF No.
52-21 at 12. The SCAWV found that the line of questioning was not
error. Therefore, by not moving for a mistrial and — at times —
not objecting (though, notably, counsel did object), Petitioner’s
counsel’s performance was not deficient. The SCAWV’s application
of law and determination of facts were reasonable, and Petitioner
is not entitled to relief.

58

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Ground 10(13)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his state-appointed trial counsel when
his counsel failed to object to and move for a mistrial based on
the prosecutor’s other improper and unconstitutional remarks made
during closing arguments. As the Court explained above, there was
no prosecutorial misconduct regarding these remarks (Ground 4) and
there was no judicial misconduct in not preventing them (Ground
8(5)).

Therefore,

there

is

no

proper

claim

of

ineffective

assistance of counsel for failing to either object or move for a
mistrial. This claim has no merit, and Petitioner is not entitled
to relief.
Ground 10(15)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his state-appointed trial counsel when
his counsel failed to object to and move for a mistrial for the
trial court’s “many instances of blatant bias and misconduct.”
This Court has already addressed Petitioner’s claims of judicial
59

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
misconduct.

The

trial

court

did

not

engage

in

misconduct.

Therefore, this claim has no merit, and Petitioner is not entitled
to relief.
Ground 10(16)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his state-appointed trial counsel when
his

counsel

failed

to

object

“to

a

myriad

of

prejudicial

circumstances throughout the entirety of the trial.” The petition
does

not

specify

referencing.

The

which
other

prejudicial

pleadings

circumstances

prove

to

be

he

is

insufficient

explanations as well. Conclusory allegations are not enough to
overcome summary judgment. The Court finds the state courts’
application of law and determination of facts were reasonable, and
Petitioner is not entitled to relief on this claim.
E.

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Ground 12
Petitioner “is afforded the right to effective assistance of

counsel

as

to

his

first

appeal

as

of

right.”

Grimes

v.

Pszczolkowski, No. 1:14CV13, 2015 WL 144619, at *7 (N.D.W. Va.
60

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
Jan. 12 2015) (citing Evitts v. Lucey, 469 U.S. 387, 396–97 (4th
Cir. 2000)). “The standard for reviewing a claim of ineffective
assistance of appellate counsel is the same as when reviewing the
effectiveness of trial counsel.” Lucas v. McBride, 505 F. Supp. 2d
329, 350 (N.D.W. Va. 2007). The Supreme Court has found the found
that a defendant
must
first
show
that
his
counsel
was
objectively unreasonable, in failing to find
arguable issues to appeal — that is, that
counsel
unreasonably
failed
to
discover
nonfrivolous issues and to file a merits brief
raising them. If [the defendant] succeeds in
such a showing, he then has the burden of
demonstrating prejudice. That is, he must show
a reasonable probability that, but for his
counsel’s unreasonable failure to file a
merits brief, he would have prevailed on his
appeal.
Smith v. Robbins, 528 U.S. 259, 285 (2000) (internal citations
omitted). The Supreme Court has recognized the importance of
appellate counsel selecting the most promising issues for review.
Jones v. Barnes, 463 U.S. 745, 752 (1983). Counsel has wide
latitude in deciding what issues to raise on appeal, and “it is
difficult to demonstrate that counsel was incompetent.” Smith, 528
U.S. at 288. As the Smith Court noted, “[g]enerally, only when
ignored issues are clearly stronger than those presented, will the
61

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
presumption of effective assistance of counsel be overcome.” Id.
(citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). A court
“must accord appellate counsel the ‘presumption that he decided
which issues were most likely to afford relief on appeal.’” Bell
v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (quoting Pruett v.
Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)).
Grounds 12(1) and 12(2)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his appellate counsel when his counsel
failed to present certain grounds on appeal that were stronger
than

those

presented

and

failed

to

present

constitutional

questions or cite to United States Supreme Court authority. Counsel
on appeal challenged the sufficiency of the evidence, the use of
Petitioner’s

novel,

the

alleged

comments

on

the

post-arrest

silence, the refusal to give the jury instruction, the “false and
perjured” testimony, and prosecutorial and judicial misconduct.
Petitioner has failed to demonstrate that the claims should
have been raised on appeal or were more meritorious than the claims
that were presented. It was reasonable for his appellate counsel
62

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
to focus on the grounds it raised. Petitioner has not listed any
claims that his appellate counsel could have or should have raised.
The SCAWV’s application of law and determination of facts were
reasonable. Therefore, Grounds 12(1) and 12(2) are without merit,
and Petitioner is not entitled to relief.
Ground 12(3)
Petitioner alleges that his rights under the 5th, 6th, and
14th Amendments to the United States Constitution were violated by
ineffective assistance of his appellate counsel when his counsel
“failed

to

pinpoint

with

accurate,

appropriate,

and

specific

citations to the trial record the post-Miranda silence remarks of
the prosecutor” described in Ground 4. As discussed above, the
prosecutor’s references to Petitioner’s pre-arrest silence were
not in error. They were challenged by defense counsel and addressed
on direct appeal. Therefore, the SCAWV’s application of law and
determination of facts were reasonable, and Petitioner is not
entitled to relief.

63

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
F.

DENIAL OF MEANINGFUL APPELLATE AND POST-CONVICTION REVIEW
Ground 13
Petitioner alleges that his rights under the 5th, 6th, and

14th Amendments to the United States Constitution were violated
when the SCAWV failed to provide Petitioner meaningful appellate
and post-conviction collateral review. The Supreme Court of the
United States has held that a criminal defendant has a liberty
interest

in

its

“substantial

and

legitimate

expectation”

of

certain procedural protections, and an “arbitrary deprivation” of
those protections may constitute a constitutional violation. Hicks
v. Oklahoma, 447 U.S. 343, 346 (1980). Contrary to Petitioner’s
arguments, Petitioner has been afforded extensive review at every
level, and his constitutional rights have been upheld. The Court
agrees with Respondent’s argument in his Memorandum of Law in
Support of his Motion for Summary Judgment:
Petitioner
was
afforded
trial
counsel,
appellate counsel, and habeas counsel. He was
afforded a direct appeal, post-conviction
proceedings, and a postconviction appeal. He
was permitted to file a direct appeal brief,
a pro se habeas petition, an amended petition,
by counsel, and a brief challenging the
circuit court’s denial of habeas relief. Both
the circuit court and the WVSCA issued
opinions and orders discussing Petitioner’s
64

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
claims. Petitioner was permitted to file all
of his claims before the state courts,
culminating in this lengthy 2254 Petition.
Petitioner cannot legally dispute that he was
afforded the full panoply of constitutional
rights provided to a convicted criminal
defendant, simply because his claims were
correctly found to be meritless.
ECF No. 82 at 21. Petitioner contends in his Response that “the
State courts refused to abide by their own Constitution and fully
consider and decide all of the Petitioner’s claims.” ECF No. 90 at
50. The Circuit Court of Berkeley County, West Virginia, and the
Supreme Court of Appeals of West Virginia both addressed all of
Petitioner’s claims and explained their reasoning, and, now, this
Court has as well. Ground 13 is without merit, and Petitioner is
not entitled to relief.
G.

CUMULATIVE ERROR
Ground 11
Petitioner alleges that his rights under the 5th, 6th, and

14th Amendments to the United States Constitution were violated by
the cumulative effect of multiple trial errors. “The cumulative
effect

of

two

or

more

individually

harmless

errors

has

the

potential to prejudice a defendant to the same extent as a single
reversible

error,”

and

“[t]he purpose
65

of

a

cumulative-error

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
analysis is to address that possibility.” United States v. Rivera,
900 F.2d 1462, 1469 (10th Cir. 1990). A “legitimate cumulativeerror analysis evaluates only the effect of matters actually
determined to be constitutional error, not the cumulative effect
of all of counsel’s actions deemed deficient.” Fisher v. Angelone,
163 F.3d 835, 852 n.9 (4th Cir. 1998).
Here, as discussed above, the Court has found no individual
constitutional errors with respect to any of Petitioner’s claims.
Therefore, a cumulative-error analysis is not appropriate. See id.
at

852

(writing

counsel’s

that

actions

“[h]aving
could

be

just

determined

considered

that

none

of

constitutional

error . . . it would be odd, to say the least, to conclude that
those same actions, when considered collectively deprived [the
defendant] of a fair trial”).
Petitioner also contends that the prosecutor erred in failing
to provide notice of its intent to use 404(b) evidence, that the
trial court failed to change the venue of the trial due to massive
publicity, and that the state witness informed the jury that
Petitioner was staying at the local regional jail. With regard to
the 404(b) claim, Petitioner has provided no facts indicating why
66

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
he is entitled to relief, and although a pro se petitioner is
entitled to liberal construction of his pleadings, he is still
“expected to state facts that point to a real possibility of
constitutional error” in a habeas petition. See Samples v. Ballard,
860 F.3d 266, 275 (4th Cir. 2017). Further, the claim regarding
the changing of the trial venue has already been procedurally
barred. As to Petitioner’s claim regarding a witness’s informing
the jury that Petitioner was in jail, the petition provides no
argument in support of this claim and fails to explain how it is
cumulative error. See ECF No. 13-1 at 5. No facts have been
provided to evidence that such comments prejudiced the jury.
Accordingly,

these

conclusory

allegations

are

either

insufficiently pled or procedurally barred and do not overcome
Respondent’s Motion for Summary Judgment.
IV.

CONCLUSION

Petitioner has failed to overcome the presumption that the
state

court

was

correct

in

its

decision.

See

28

U.S.C.

§ 2254(e)(1). For the reasons discussed above, the Court ORDERS
the following:
•

the R&R is ADOPTED [ECF No. 96] to the
67

PROPHET V. BALLARD

1:16-CV-178

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 96], OVERRULING PETITIONER’S OBJECTIONS [ECF NO. 98],
GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 81], AND
DENYING AND DISMISSING § 2254 PETITION [ECF NO. 13]
extent not modified
Opinion and Order;

in

this

Memorandum

•

Petitioner’s Objections are OVERRULED [ECF
No. 98];

•

Respondent’s Motion for Summary Judgment is
GRANTED [ECF No. 81];

•

Petitioner’s Motion to Expedite Review is
DENIED AS MOOT [ECF No. 93];

•

Petitioner’s § 2254 petition is DENIED [ECF
No. 13]; and

•

this action is DISMISSED WITH PREJUDICE and
STRICKEN from the Court’s active docket.

It is so ORDERED.
The Court directs the Clerk to enter a separate judgment order
and to transmit copies of it and this Order to the pro se petitioner
via certified mail, return receipt requested.
DATED: August 19, 2019

___________________________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

68