Lanham v. Plumley
Filing
82
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 69 : The Court ADOPTS the R&R in its entirety (Dkt. No. 69 ); OVERRULES Lanhams objections (Dkt. Nos. [79;] 81 );. GRANTS the respondents motions for summary judgment (Dkt. No. 14 ; 64 ); DENIES as MOOT the respondents motion to dismiss the petitioners amended petition (Dkt. No. 48 ); GRANTS the petitioners motion for leave to file amendments (Dkt. No. 56 ); DENIES as MOOT the petitioners motion for new trial and f or release from custody (Dkt. No. 5 9 ); GRANTS the petitioners motion to submit new evidence(Dkt. No. 62 ); DENIES the petitioners motion to file an affidavit (Dkt.No. 70 ); GRANTS the petitioners motion to amend his objections to;the R&R (Dkt. No. 81 ); and DENIES the Amended Petition (Dkt. No. 43 ) and DISMISSESthis case WITH PREJUDICE. The Court finds that Lanham has not made the requisite showing, and DENIES a certificate of appealability. Signed by Senior Judge Irene M. Keeley on 3/28/18. (Attachments: # 1 Certified Mail Return Receipt)(jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL K. LANHAM,
Petitioner,
v.
//
CIVIL ACTION NO. 1:17CV20
(Judge Keeley)
JOHN T. MURPHY, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
Pending for review is the Amended Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(“Amended Petition”) filed by the pro se petitioner, Michael K.
Lanham (“Lanham”). In 2011, Lanham was convicted of first-degree
robbery and conspiracy to commit robbery in the Circuit Court of
Harrison County, West Virginia (“Circuit Court”). In his Amended
Petition, Lanham contends that the photographic array used to
identify him was impermissibly suggestive, and that there was
insufficient evidence to support his convictions.
For the reasons that follow, the Court ADOPTS the Report and
Recommendation (Dkt. No. 69), GRANTS the respondent’s motions for
summary judgment (Dkt. Nos. 14, 64), DENIES the Amended Petition
(Dkt. No. 43),
and DISMISSES the case WITH PREJUDICE.
LANHAM V. MURPHY
1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
I. BACKGROUND1
In May 2011, a grand jury in Harrison County, West Virginia,
returned a two-count indictment, charging Lanham with one count of
first-degree robbery and one count of conspiracy to commit robbery
(Dkt. No. 13-1). The robbery in question occurred on February 18,
2011, at Dry Cleaning World in Bridgeport, West Virginia. During
the course of the investigation of the robbery, Detective Matthew
Wilfong (“Wilfong”) of the Bridgeport Police Department compiled
two photographic arrays consisting of six males and six females,
respectively. On February 23, 2011, he presented both photo arrays
to Pamela Hollington (“Hollington”), the victim and sole employee
in
the
store
Hollington
Lanham’s
at
the
identified
girlfriend
time
of
Lanham
and
a
the
and
robbery.
Deborah
former
store
From
Nunley
employee,
the
arrays,
(“Nunley”),
as
having
committed the robbery.
A.
Criminal Trial and Direct Appeal
Prior to trial, Lanham moved to suppress the photographic
array (Dkt. No. 13-2), contending that the identification procedure
was impermissibly suggestive because both his photograph and that
1
Magistrate Judge Seibert’s R&R, adopted and incorporated,
contains a more detailed summary discussion of the facts (Dkt. No.
69 at 4-7).
2
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
of Nunley appeared in the third position in each photo array.2 At
a pretrial hearing on October 20, 2011, Detective Wilfong testified
that he had not purposefully placed Lanham and Nunley’s photographs
in the third position in their respective photographic arrays,
stating that the sequencing of their photos “just happened to fall
on that [third] number” (Dkt. No. 13-22 at 12). Detective Wilfong
further testified that all of the individuals included in the
respective
arrays
hairstyles,
and
shared
that,
similar
when
ages,
presented
facial
with
features
the
male
and
array,
Hollington had identified Lanham almost immediately and without
hesitation. Id. at 5, 16-17.
Following Wilfong’s testimony, Lanham’s attorney moved to
suppress the photo array, arguing that the same-position sequencing
of Lanham and Nunley was impermissibly suggestive, and also that
some
of
the
photos
were
“a
little
dark”
or
stretched
and,
therefore, inaccurate. Id. at 21-22. The Circuit Court denied
Lanham’s motion, noting in doing so that the individuals included
in the array all shared similar features. Id. at 23. The case
proceeded to trial on October 25, 2011.
2
The photographic arrays at issue are both comprised of six
photos arranged in two horizontal lines with three photos in each
line. Lanham and Nunley are both pictured in the third position in
the first row in each of their respective arrays.
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
At trial, Hollington testified about the events of the robbery
before identifying Lanham and Nunley as her assailants (Dkt. No.
13-22). On October 26, 2011, the jury convicted Lanham on both
counts (Dkt. No. 13-5 at 5), and, on December 8, 2011, the Circuit
Court sentenced him to an aggregate term of 31 to 35 years
incarceration
(Dkt.
No.
13-6).
Lanham
timely
appealed
his
convictions (Dkt. No. 13-8 at 9).
The Supreme Court of Appeals of West Virginia (“Supreme Court
of Appeals”) affirmed Lanham’s convictions on February 11, 2013
(Dkt. No. 13-11). In particular, it concluded that the trial court
had not erred in admitting the photographic array or the subsequent
identifications of Lanham, and that the jury had been presented
sufficient evidence upon which it could have returned a guilty
verdict (Dkt. No. 13-11 at 3).
B.
Post-Conviction Proceedings
1. State Habeas Corpus
After the Supreme Court of Appeals affirmed his conviction,
Lanham filed a pro se petition for habeas corpus relief on February
6, 2014 (Dkt. No. 13-27). The Circuit Court appointed counsel, who
filed an amended petition on Lanham’s behalf, raising the following
issues:
1)
mental
competency
at
the
time
of
trial;
2)
the
suppression of helpful evidence; 3) the State’s knowing use of
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
perjured testimony; 4) ineffective assistance of trial counsel; 5)
challenges to the composition of the grand jury; 6)constitutional
errors and evidentiary rulings; 7) inadequate jury instructions; 8)
prejudicial statements by the prosecutor; 9) insufficient evidence;
10) a more severe sentence than expected; and 11) an excessive
sentence (Dkt. No. 13-15).
By written order entered on May 11, 2016, and amended order
entered on May 24, 2016, the Circuit Court denied habeas relief
(Dkt. No. 13-17), concluding that the entirety of Lanham’s claim,
including his constitutional challenge to the court’s admission of
the photographic identification at trial, was without merit. Id. at
19-20.
Lanham filed a timely notice of appeal on May 31, 2016 (Dkt.
No. 13-18). Subsequently, however, his counsel moved to dismiss the
appeal based on the inability to raise any colorable claims not
barred by res judicata (Dkt. No. 13-19). The Supreme Court of
Appeals dismissed the appeal on March 2, 2017 (Dkt. No. 13-21).
2.
§ 2254 Petition
While his appeal was pending, on February 10, 2017, Lanham
filed his § 2254 Petition in this Court (Dkt. No. 1). In his sole
ground for relief, Lanham claimed that the photographic array used
to identify him was impermissibly suggestive. Pursuant to 28 U.S.C.
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
§ 636 and LR PL P 2, the Court referred the Petition to United
States Magistrate Judge James E. Seibert for initial review. On
March 27, 2017, the respondent answered Lanham’s Petition and also
moved for summary judgment (Dkt. No. 14). With the Court’s leave,
Lanham amended his Petition on July 13, 2017 (“Amended Petition”)
(Dkt. No. 43).
In his Amended Petition, Lanham raised three grounds for
relief. First, as he had throughout the course of his state and
federal proceedings, he contended that the photo array used to
identify him was unconstitutionally suggestive. Id. at 6. Second,
he
claimed
there
was
insufficient
evidence
to
support
his
conviction. Id. at 10. More specifically, he alleged that there was
“no evidence to tie [him] to the crime or crime scene other than
the tainted photo lineup.” Id. Finally, he alleged that he was
denied his Sixth Amendment right to confront the witnesses against
him. Id. at 12.
On August 23, 2017, the respondent moved to dismiss the
Amended Petition on the ground that, because Lanham had never
presented his Sixth Amendment claim to any state court, his Amended
Petition included an unexhausted claim and thus constituted a
“mixed petition” subject to dismissal (Dkt. No. 49). On September
4, 2017, Lanham filed a motion seeking to abandon his unexhausted
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
claim (Dkt. No. 56), and reiterated his request in a subsequent
filing on October 5, 2017 (Dkt. No. 58).
By Order entered on November 21, 2017, the magistrate judge
directed Lanham to indicate whether he wished to seek a stay and
return to state court to exhaust his state remedies regarding his
Sixth Amendment claim (Dkt. No. 60). On December 8, 2017, Lanham
moved to submit new evidence, stating that he did not wish to seek
a stay (Dkt. No. 62). On December 12, 2017, the respondent renewed
its motion for summary judgment (Dkt. No. 64).
In a Report and Recommendation (“R&R”) entered on January 16,
2018, Magistrate Judge Seibert recommended that the Court grant the
respondent’s motions for summary judgment and deny and dismiss the
Amended Petition with prejudice (Dkt. No. 69). With regard to the
photographic array, the R&R concluded that Lanham had failed to
adequately rebut the findings of the Circuit Court or the Supreme
Court of Appeals, or to establish that the state courts that had
reviewed
his
case
had
unreasonably
applied
federal
law
or
improperly weighed the applicable facts in light of the evidence.
Id. at 17. Magistrate Judge Seibert further concluded that, when
viewed in the light most favorable to the prosecution, the evidence
was sufficient to support the jury’s verdict. Id. at 22.
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
The
R&R
informed
Lanham
of
his
right
to
file
“written
objections identifying the portions of the Recommendation to which
objections are made, and the basis for such objections.” Id. at 23.
It further warned that the failure to do so may result in waiver of
his right to appeal. Id. After receiving an extension of time to do
so (Dkt. No. 78), Lanham timely filed objections to the R&R on
February 5, 2018 (Dkt. Nos. 79; 81). On February 9, 2018, he moved
to amend his objections to include certain attachments for the
Court’s consideration (Dkt. No. 81).
II. STANDARDS OF REVIEW
A.
Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A court may not, however, construct the
plaintiff’s legal arguments for him, nor should it “conjure up
questions never squarely presented.” Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).
B.
Motion for Summary Judgment
Summary judgment is appropriate in a habeas corpus proceeding
where
the
“depositions,
documents,
electronically
stored
information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials” establish
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a), (c)(1)(A); see also Maynard v. Dixon, 943 F.2d 407, 412 (4th
Cir. 1991). When ruling on a motion for summary judgment, the Court
reviews all the evidence “in the light most favorable” to the
nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc.,
211 F.3d 846, 850 (4th Cir. 2000). The Court must avoid weighing
the evidence or determining its truth and limit its inquiry solely
to a determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
C.
Report and Recommendation
When reviewing a magistrate judge’s R&R, the Court must review
de novo only those portions to which an objection is timely made.
28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
9
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F.
Supp. 2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs,
Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).
Failure to raise specific errors waives the claimant’s right to a
de novo review because “general and conclusory” objections do not
warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see
also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009).
Indeed, failure to file specific objections waives appellate review
of both factual and legal questions. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
III. APPLICABLE LAW
Title 28 U.S.C. § 2254 permits a state prisoner to file an
application for a writ of habeas corpus to challenge his conviction
“only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). “[R]eview under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A court
10
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
may not grant a writ under § 2254 regarding a claim “adjudicated on
the merits in State court” unless the adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of facts in light of the
evidence presented in the State court proceeding.
Id. § 2254(d).
A “state-court decision is contrary to” the Supreme Court’s
“precedent if the state court arrives at a conclusion opposite to
that reached” by the Supreme Court “on a matter of law” or
“confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result opposite
to ours.”
Williams v. Taylor, 529 U.S. 362, 405 (2000). A state
court decision “involves an unreasonable application” of such law
if it “identifies the correct governing legal principle . . . but
unreasonably applies” it to the facts. Id. at 412. Importantly,
“unreasonable application” requires that the Court do more than
“conclude[] in its independent judgment that the relevant state
court decision applied clearly established federal law erroneously
or incorrectly.” Id. at 411. Therefore, § 2254 acts to guard only
against “extreme malfunctions,” such as “cases where there is no
possibility fair minded jurists could disagree that the state
11
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
court’s
decision
conflicts
with”
Supreme
Court
precedent.
Harrington v. Richter, 562 U.S. 86, 102 (2011).
Indeed, “principles of comity and respect for state court
judgment precludes federal courts from granting habeas relief to
state prisoners for constitutional errors committed in state court
absent a showing that the error ‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’” Richmond
v. Polk, 375 F.3d 309, 335 (4th Cir. 2004) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)). Factual determinations by
the state court are presumed correct, unless the petitioner proves
otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
see also Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010).
IV. DISCUSSION
For the most part, Lanham’s objections fail to identify
specific errors in the R&R and, in fact, contain few references to
the R&R itself. These reiterations and general objections, all of
which were fully addressed in the R&R, place the Court under no
obligation to conduct a de novo review. Diamond, 414 F.3d at 315.
When liberally construed, Lanham’s objections to specific
portions of the R&R ostensibly concern his claim regarding the
sufficiency of the evidence at trial. Additionally, he seeks a stay
so that he can return to state court to exhaust his Sixth Amendment
12
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MEMORANDUM OPINION AND ORDER ADOPTING
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claim. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340
(S.D.N.Y. 2009)(noting that pro se objections should be “accorded
leniency” and “construed to raise the strongest arguments that they
suggest” (internal quotation omitted)). Accordingly, this Court
will review de novo only those portions of the magistrate judge's
findings. The remaining portions will be reviewed for clear error.
A.
Sufficiency of the Evidence
When
liberally
construed,
Lanham’s
objections
appear
to
reference the R&R’s evaluation of the trial testimony “at the
bottom of pg. 21" and 22 of the R&R (Dkt. No. 79 at 2; 3; 5; 6).
Upon careful review of the record and the R&R, the Court concludes
that Lanham’s objections are without merit.
An essential element of the “due process guaranteed by the
Fourteenth Amendment [is] that no person shall be made to suffer
the onus of a criminal conviction except upon sufficient proof.”
Jackson v. Virginia, 443 U.S. 307, 316 (1979). Before passage of
the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), the
Supreme Court asked “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at 319. “This familiar standard gives full
play to the responsibility of the trier of fact fairly to resolve
13
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
conflicts
in
testimony,
to
weigh
the
evidence,
and
to
draw
reasonable inference from basic facts to ultimate facts.” Id. Under
28 U.S.C. § 2254(d)(1), courts similarly ask “whether a state court
determination
that
the
evidence
was
sufficient
to
support
a
conviction was an ‘objectively unreasonable application of [the
standard enunciated in] Jackson.’” Williams v. Ozmint, 494 F.3d
478, 489 (4th Cir. 2007) (alteration in original) (quoting Sarausad
v. Porter, 479 F.3d 671, 677 (9th Cir. 2007)).
Evidence is sufficient to support a conviction in the Fourth
Circuit if “there is substantial evidence in the record, when
viewed in the light most favorable to the government, to support
the conviction.” United States v. Palacios, 677 F.3d 234, 248 (4th
Cir. 2012) (quoting United States v. Jaensch, 665 F.3d 83, 93 (4th
Cir. 2011). “[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant's guilt beyond a reasonable doubt.” Id.
(alteration in original) (quoting United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc)).
Here, the evidence was sufficient for the jury to have found
the essential elements of first-degree robbery and conspiracy to
commit robbery beyond a reasonable doubt. At trial, Hollington
testified at length about the robbery, describing in detail the
14
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sequence of events from Lanham and Nunley’s arrival at Dry Cleaning
World to their departure from the store with $230 stolen from the
cash register (Dkt. No. 13-23). According to Hollington, Lanham and
Nunley entered Dry Cleaning World on February 18, 2011, and
inquired about the store’s tanning bed packages. Id. at 130.
Hollington testified that, after Lanham came out of the tanning
room, he hit her in the chin with his fist, threw her into a
clothing rack, and told her to lie face down on the floor. Id. at
135; 139. Hollington further testified that Lanham told her that he
knew where she lived, that he knew she had a daughter, and that, if
she attempted to raise her head, he would “blow [her] brains out.”
Id. at 139.
Hollington also testified that Lanham repeatedly told her she
had better tell him and Nunley how to get the cash register open,
and that she had to give them the access code more than once before
they were able to open the register. Id. at 139; 141. Notably,
Hollington recounted how, at one point, she turned her head around
to speak to Lanham about the access code, and thus, was able to
observe his physical appearance at the time of the robbery. Id. at
142. In her testimony, she described him as “about 5'10,” and
wearing a “grey hoodie with jeans” and “smoky colored glasses.” Id.
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at 130. Finally, Hollington identified Lanham in open court. Id. at
144.
In addition to Hollington’s testimony, the State presented the
testimony of at least six other witnesses, including that of Terry
Hotsinpillar, who also provided a physical description of Lanham
and generally corroborated Hollington’s testimony, and that of
Joseph Helms, who testified that, when Lanham and Nunley arrived at
his house after the robbery, Lanham remarked that he “can’t believe
we got away with it.” Id. at 211-16; 249-50.
On appeal, the Supreme Court of Appeals concluded that “the
jury was presented with sufficient evidence upon which [it] could
have returned a guilty verdict, [Lanham’s] credibility arguments
not withstanding” (Dkt. No. 13-11 at 3). Further, the Court must
presume that the jury “resolved any . . . conflicts in favor of the
prosecution, and must defer to that resolution.” Williams, 494 F.3d
at 490 (quoting Jackson, 443 U.S. at 326). Thus, when viewing the
evidence
and
all
credibility
assessments
in
favor
of
the
prosecution, the Court concludes that the sum of the testimony at
trial, as recounted here and in the R&R, constituted adequate
evidence upon which the jury could have based its conclusion that
Lanham was guilty beyond a reasonable doubt. The Court therefore
OVERRULES Lanham’s objections.
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B.
Request for Stay
As part of his objections, Lanham requests a stay in the case
so that he can exhaust his state remedies regarding his Sixth
Amendment claim (Dkt. No. 79 at 1, 5, 8).
Importantly,
district
courts
may
only
entertain
a
writ
pursuant to § 2254 if the applicant has exhausted all available
state remedies. Id. § 2254(b)(1)(A). Prisoners have not exhausted
their state remedies if they have “the right under the law of the
State
to
presented.”
raise,
Id.
by
§
any
available
2254(c).
It
is
procedure,
the
the
prisoner’s
question
burden
to
demonstrate that he has exhausted his state judicial remedies.
Beard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). The exhaustion
rule in § 2254(b), (c) requires district courts to dismiss socalled “mixed petitions” containing any unexhausted claims. Rose v.
Lundy, 455 U.S. 509, 520-22 (1982). Prisoners may then resubmit
petitions with only exhausted claims, or exhaust the remainder of
their claims before filing another petition. Id. at 520.
Under the AEDPA, prisoners must file suit within one year of
the judgment of the state court. 28 U.S.C. § 2255(d)(1). That time
period begins to run from the date when the state judgment became
final “by the conclusion of direct review or the expiration of the
time for seeking such review,” see id., but is tolled for the
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pendency
of
2244(d)(2).
any
state
Importantly,
post-conviction
a
prisoner
proceedings.
cannot
toll
the
Id.
§
one-year
limitation period under the AEDPA by filing a federal habeas
petition. Duncan v. Walker, 533 U.S. 167, 172 (2001).
To remedy the potentially harsh consequences that arise when
prisoners file mixed § 2254 petitions near the one-year deadline,
district courts have discretion to grant a stay and abeyance.
Rhines v. Weber, 544 U.S. at 269, 277 (2005). This allows prisoners
to pursue any unexhausted claims in state court and return to the
district court to prosecute their § 2254 petitions. See id. The
Supreme Court of the United States has cautioned, however, that
stays are to be granted “in limited circumstances,” so as not to
frustrate
the
AEDPA’s
objectives
of
achieving
finality
and
streamlining federal habeas proceedings. Id. The prisoner must show
“good cause” for his failure to exhaust his claims in state court;
furthermore, his claims must not be “plainly meritless.” Id. The
district
court
must
structure
any
stay
to
comport
with
the
timeliness concerns reflected in AEDPA. Id. Finally, the district
court must not grant a prisoner a stay if he engages in “abusive
litigation tactics or intentional delay.” Id. at 278.
In the event that a court decides a stay and abeyance is
inappropriate,
it
must
allow
the
18
prisoner
to
“delete
the
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1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
unexhausted claims and to proceed with the exhausted claims if
dismissal of the entire petition would unreasonably impair the
petitioner’s right to obtain federal relief.” Id.
Here, Lanham’s Amended Petition includes a claim that he was
denied his Sixth Amendment right to confront the witnesses against
him (Dkt. No. 43 at 12). While it is undisputed that this claim has
not been exhausted, on at least two occasions subsequent to the
filing of the Amended Petition, Lanham has clearly indicated to
this
Court
that
he
wished
to
abandon
his
unexhausted
Sixth
Amendment claim (Dkt. Nos. 56, 58). In the face of these clear
indications of his desire to drop his Sixth Amendment claim from
the Amended Petition, the magistrate judge provided Lanham with the
opportunity to seek a stay in the case, and directed him to
specifically indicate whether he wished to return to state court to
exhaust his state remedies regarding his Sixth Amendment claim
(Dkt. No. 60). In a subsequent filing responding to that inquiry,
Lanham unequivocally stated that he did not wish to seek a stay in
the case (Dkt. No. 62).
Now, following the issuance of Magistrate Judge Seibert’s R&R
recommending that his Petition be dismissed with prejudice, Lanham,
for the first time, seeks a stay for the purpose of exhausting his
Sixth
Amendment
claim.
As
discussed
19
above,
Lanham
had
the
LANHAM V. MURPHY
1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
opportunity to seek a stay in order to exhaust his state remedies
regarding his unexhausted claim but instead chose to delete the
unexhausted Sixth Amendment claim from his Amended Petition and
proceed on his exhausted claims. Furthermore, in his request for a
stay, Lanham has failed to establish any good cause for his failure
to exhaust his Sixth Amendment claim in state court. Rhines, 544
U.S. at 277.
For these reasons, particularly the procedural posture of the
case and Lanham’s repeated, consistent statements regarding his
decision to abandon his unexhausted claim, the Court declines to
grant Lanham’s request for a stay and abeyance.
V. CONCLUSION
Following a de novo review of Lanham’s specific objections,
and finding no clear error in those portions of the R&R not
specifically objected to, the Court:
1).
ADOPTS the R&R in its entirety (Dkt. No. 69);
2).
OVERRULES Lanham’s objections (Dkt. Nos. 79; 81);
3).
GRANTS the respondent’s motions for summary judgment
(Dkt. No. 14; 64);
4).
DENIES as MOOT the respondent’s motion to dismiss the
petitioner’s amended petition (Dkt. No. 48);
20
LANHAM V. MURPHY
1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
5).
GRANTS
the
petitioner’s
motion
for
leave
to
file
amendments (Dkt. No. 56);
6).
DENIES as MOOT the petitioner’s motion for new trial and
for release from custody (Dkt. No. 59);
7).
GRANTS the petitioner’s motion to submit new evidence
(Dkt. No. 62);
8).
DENIES the petitioner’s motion to file an affidavit (Dkt.
No. 70)3;
9).
GRANTS the petitioner’s motion to amend his objections to
the R&R (Dkt. No. 81); and
10). DENIES the Amended Petition (Dkt. No. 43) and DISMISSES
this case WITH PREJUDICE.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to
the
applicant”
in
such
cases.
If
the
court
denies
the
certificate, “the parties may not appeal the denial but may seek a
3
“[R]eview under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
21
LANHAM V. MURPHY
1:17CV20
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 69]
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.” 28 U.S.C. foll. § 2254(a).
The
Court
finds
that
it
is
inappropriate
to
issue
a
certificate of appealability in this matter because Lanham has not
made a “substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the
district
court
is
likewise
debatable.
See
Miller–El
v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court finds that Lanham has not made the requisite showing, and
DENIES a certificate of appealability.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to the pro se petitioner, certified mail,
return receipt requested. The Clerk is further DIRECTED to enter a
separate judgment order and to remove this case from the Court’s
active docket.
DATED: March 28, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
22
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