Wilson v. Ballard

Filing 49

ORDER ADOPTING 45 OPINION/REPORT AND RECOMMENDATION; granting Motion 39 to Dismiss filed by David Ballard and Petitioner's 2254 petition is DENIED and DISMISSED without prejudice. The court DENIES a certificate of appealability. Signed by District Judge Gina M. Groh on 4/8/2013. Copy sent certified mail, return receipt to pro se Petitioner. (tlg) (Additional attachment(s) added on 4/8/2013: # 1 certified mail receipt) (tlg).

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

MARK ALLEN WILSON,
Petitioner,
v.

CIVIL ACTION NO. 3:12-CV-57
(JUDGE GROH)

DAVID BALLARD,
Respondent.

ORDER ADOPTING OPINION/REPORT AND RECOMMENDATION
I. Introduction
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge James E. Seibert. By
Standing Order, entered on March 24, 2000, this action was referred to Judge Seibert for
submission of a proposed report and recommendation (“R&R”). Judge Seibert filed his
R&R [Doc.45] on January 28, 2013. In that filing, he recommends that this Court deny and
dismiss without prejudice Petitioner’s § 2254 petition and grant Respondent’s Motion to
Dismiss.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or

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recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the petitioner's right to appeal this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert’s R&R were
due within fourteen (14) days after being served with a copy of the R&R pursuant to 28
U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. The docket
reflects that Petitioner accepted service on January 31, 2013. Petitioner timely filed his
objections on February 6, 2013. Accordingly, this Court will undertake a de novo review
of those portions of Judge Seibert’s findings to which objection is made. The Court will
review the remainder of the R&R for clear error.
II. Background
A. Factual Background
On or about June 7, 2005, Petitioner was indicted by a Grand Jury of the Circuit
Court of Marion County on four counts of Third Degree Sexual Assault, in violation of West
Virginia Code § 61-8B-5(a)(2) and four counts of Sexual Abuse by a Custodian, in violation
of West Virginia Code § 61-8D-5(a). On March 16, 2006, after a two-day jury trial,
Petitioner was found guilty of all charges. On September 26, 2006, the Circuit Court of
Marion County entered an Order sentencing Petitioner to not less than one nor more than
five years on each count of Third Degree Sexual Assault, and not less than ten nor more
than twenty years on each count of Sexual Abuse by a Parent, Guardian, Custodian or
Person in a Position of Trust to a Child, for a total term of imprisonment of not less than
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fourteen nor more than forty years. On October 16, 2006, the Circuit Court entered an
amended sentencing Order, clarifying its original sentencing Order.
On March 21, 2008, Petitioner, through counsel, filed an appeal to the West Virginia
Supreme Court. In the appeal, Petitioner asserted the following three assignments of error:
(1) The trial court erred when it ruled that the [Petitioner’s] “confession” was freely,
intelligently and voluntarily given;
(2) The trial court abused its discretion when it ruled that evidence of the
[Petitioner’s] dismissal from a related abuse and neglect proceeding was inadmissible;
(3) The trial court abused its discretion when it allowed the state to question the
Defendant’s expert witness regarding his determination of the [Petitioner’s] competency.
On September 20, 2007, the West Virginia Supreme Court refused the petition.
On December 23, 2008, Petitioner, through counsel, filed a petition for writ of
habeas corpus with the Circuit Court of Marion County. In it, Petitioner asserts he raised
the following grounds for relief: “the sixteen issues allege violations of the 5th, 6th, 8th, and
14th Amendments to the U.S. Constitution, including violations of Petitioner’s right to
effective assistance of counsel, protection against double jeopardy, and the due process
of law.” Petitioner’s state habeas petition is still pending in the Marion County Circuit Court.
On June 15, 2011, Petitioner, acting pro se, filed a second petition for writ of habeas
corpus with the West Virginia Supreme Court, raising the following four grounds for relief:
(1) “Was the petitioner denied the right to a valid Grand Jury Indictment, created by
the state’s abuse of discretion by the failure to evidence sufficient witnesses [sic] to permit
the Grand Jury to properly investigate, first hand [sic] and test the evidence as duty bound
in derogation of the state and federal constitutions?”

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(2) ““Was Petitioner denied the right to trial by valid indictment charges, Counts I,
III, V, and VII [sic] where [sic] the state failed to charge every material element of the
offense in the charging instrument in derogation of the state and federal constitutions?”
(3) “Did the Circuit Court ‘abuse its discretion’ by permitting expansive, different and
altered elemental definitions in the Indictment and in the Instructions in Counts II, IV, VI and
VII denying [sic] a fair trial with reliable results in derogation of State and Federal
Constitutions [sic] then compounded by the ‘prejudicial spillover’ effect from Count I, III, V
and VII [sic] mandating reversal?”
(4) “Was petitioner denied the right to a fair trial in direct violation of State and
Federal Constitutions by the cumulative effect of numerous errors which manifested to
create an insurmountable barrier to fair trial as guaranteed by the Constitution [sic]
mandating reversal?”
The West Virginia Supreme Court refused the petition on January 12, 2012.
On June 18, 2012, Petitioner commenced this action. In his petition, he raises the
following eight grounds for relief:
(1) Counsel was ineffective in eleven different ways, thus depriving Petitioner of his
First, Fifth, Sixth, and Fourteenth Amendment Rights to meaningful and effective
assistance of counsel;
(2) Petitioner’s constitutional right against self-incrimination was violated when the
trial court admitted his confession;
(3) Petitioner was denied his right to a fair, impartial jury trial when the prosecuting
attorney failed to establish that the minor victim was in Petitioner’s care, custody and
control when the violations of W. Va. Code § 61-8D-5(a) were committed;
(4) Petitioner’s consecutive sentences violate the Fifth and Eighth Amendments to
the Constitution;
5) The trial court excluded exculpatory material from Petitioner’s dismissal from a
related child abuse and neglect proceeding, in violation of his Sixth and Fourteenth
Amendment rights;

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(6) Appellate counsel was ineffective for failing to raise as grounds for appeal the
defective indictment; the court’s constructive amendment of the indictment; and the
protection from double the jeopardy claim arising out of the lack of specificity of the
charges;
(7) Petitioner’s Fifth, Sixth, and Fourteenth Amendment due process and equal
protection rights were violated by various failures on the part of the trial court, occurring
between trial and sentencing; and
(8) The Indictment was defective, because it did not include a material element of
the crime of Sexual Assault in the Third Degree, i.e., that the minor victim was less than
sixteen years of age.
In his petition filed with this Court, Petitioner seeks appointed counsel, an evidentiary
hearing, and to have his convictions and sentences be vacated. He also requests the
Court to make a finding that the state court’s decision to affirm his convictions was an
unreasonable application of clearly established federal law. Last, he requests that the
Court hold his case in abeyance while he pursues his unexhausted claims in state court.
Petitioner also filed an amended petition that raised seven new claims. The seven
claims are:
(9) Petitioner was denied his Sixth and Fourteenth Amendment rights to confront his
accuser when, at trial, the court prevented counsel from impeaching the child victim with
her prior inconsistent statements;
(10) Petitioner was denied a fair trial based on the cumulative effect of numerous
errors made;
(11) Petitioner’s due process rights were violated when the court permitted the jury
to consider the four counts of sexual abuse by a custodian as stated in Counts Two, Four,
Six and Eight of the Indictment, because they were based on insufficient evidence;
(12) Petitioner’s due process rights to a fair trial were violated when the trial court
committed reversible errors by permitting prosecutorial misconduct to occur;
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(13) Petitioner’s due process rights were violated when the trial court imposed
multiple punishments for the same criminal act, violating the prohibition against double
jeopardy;
(14) Petitioner’s due process rights were violated when the trial court permitted the
prosecuting attorney to question Petitioner’s psychological expert as to his determination
of Petitioner’s competency;
(15) Petitioner’s due process rights were violated when the prosecuting attorney
secured the Indictment without presenting to the Grand Jury direct testimony from the
juvenile victim and other witnesses with direct knowledge of the acts charged; and
(16) Petitioner’s Eighth and Fourteenth Amendment rights were violated by the trial
court’s denial of Petitioner’s motion for a judgment of acquittal notwithstanding the jury
verdict.
B. Procedural History
On June 18, 2012, Petitioner filed a letter to the Clerk of Court, construed as a
petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. On
June 19, 2012, the Clerk of Court sent Petitioner a deficiency notice directing him to file his
petition on a court-approved form and to either pay the $5.00 filing fee or submit an
application to proceed in forma pauperis (“IFP”) along with a copy of his Prisoner Trust
Account and its Ledger Sheets within twenty-one days.
On July 27, 2012, Petitioner filed his petition on an unapproved form, even though
he was provided with the proper form. Petitioner also filed his IFP application, a copy of
his Prisoner Trust Account Report and Ledger Sheets, and paid the filing fee. On July 27,
2012, Judge Seibert issued a Show Cause Order directing Petitioner to file his complaint
on a court-approved form.
On August 9, 2012, Petitioner filed his court-approved petition, along with a motion
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requesting leave to file excess pages and to amend his petition, by adding seventeen more
claims. On August 15, 2012, Respondent was directed to answer the petition. On the
same date, a separate Order granted Petitioner’s motion for leave to file excess pages and
to file an amended petition. On September 6, 2012, Respondent filed a motion to reset the
briefing schedule. On September 12, 2012, Petitioner filed motions to appoint counsel,
conduct discovery, and for an extension of time. On September 14, 2012, Judge Seibert
issued an Order granting Respondent’s motion to reset the briefing schedule. Also on
September 14, Petitioner filed an amended petition stating seven additional claims for relief.
On September 17, 2012, Judge Seibert denied Petitioner’s motion to appoint counsel and
to conduct discovery. Petitioner’s motion for an extension of time was also denied as moot.
On November 19, 2012, Respondent filed a motion to dismiss with a memorandum
in support. Respondent argues that because Petitioner’s habeas corpus petition is still
pending in state court, none of Petitioner’s claims are exhausted and his petition should be
dismissed. Alternatively, Respondent contends that if the Court determines that the three
claims Petitioner raised on direct appeal to the West Virginia Supreme Court are
exhausted, then Petitioner has raised a mixed petition that must be dismissed without
prejudice. Last, Respondent asserts that Petitioner’s request for a stay and abeyance is
premature because the statute of limitations for timely filing his habeas petition in federal
court is tolled while his habeas petition is pending in state court.
On November 26, 2012, Judge Seibert issued a Roseboro notice to Petitioner. On
November 29, 2012, Petitioner filed his Response to Respondent’s Motion to Dismiss. On
December 3, 2012, Respondent filed a Reply to Petitioner’s Response to its Motion to

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Dismiss.
On January 28, 2013, Judge Seibert issued a Report and Recommendation granting
Respondent’s Motion to Dismiss Petitioner’s § 2254 petition and denying and dismissing
without prejudice Petitioner’s § 2254 petition. Judge Seibert found that Petitioner had not
exhausted his claims and that he still has a remedy available for them in State court.
Additionally, Judge Seibert found there was no need for a stay and abeyance because
none of Petitioner’s claims were exhausted and he did not present a mixed petition.
III. Standard of Review
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1356 (1990)). When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must assume all of the allegations to be true,
must resolve all doubts and inferences in favor of the plaintiff, and must view the allegations
in a light most favorable to the plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231,
243-44 (4th Cir. 1999).
But, a complaint must be dismissed if it does not allege “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127
S. Ct. 1955, 1974 (2007) (emphasis added). “The pleading standard Rule 8 announces
does not require detailed factual allegations, but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions
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or a formulaic recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of further factual enhancements.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).
IV. Discussion
A.

Exhaustion of State Court Remedies

Section 2254 of Title 28 provides, in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State .
..
(c) An applicant shall not be deemed to have exhausted the remedies available in
the courts of the State, within the meaning of this section, if he has the right under the law
of the State to raise, by any available procedure, the question presented.
28 U.S.C. §§ 2254(b)(1)(A), (c). The petitioner bears the burden of proving exhaustion.
See Breard v. Pruett, 133 F.3d 615, 619 (4th Cir. 1998), cert. denied 523 U.S. 371 (1998);
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Where a petitioner has failed to
exhaust his state court remedies, the federal petition should be dismissed. McDaniel v.
Holland, 631 F. Supp. 1544, 1545 (S.D. W. Va. 1986) (citing Preiser v. Rodriguez, 411
U.S. 475, 477, 93 S. Ct. 1827, 1830 (1973)).
In West Virginia, prisoners may exhaust their available state court remedies either
by stating cognizable federal constitutional claims in a direct appeal, or by stating such
claims in a petition for a writ of habeas corpus in a state circuit court pursuant to West

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Virginia Code § 53-4A-1, followed by filing a petition for appeal from an adverse ruling in
the West Virginia Supreme Court of Appeals. See Forney v. Ballard, 2012 WL 42351
(N.D.W. Va. Jan. 9, 2012); Moore v. Kirby, 879 F. Supp. 592, 593 (S.D.W. Va. 1995). A
prisoner may also exhaust state court remedies by filing a petition for a writ of habeas
corpus filed under the West Virginia Supreme Court’s original jurisdiction. However, an
original jurisdiction petition that is denied without an indication that the denial is with
prejudice following a determination on the merits will not exhaust the prisoner’s state court
remedies. See W. VA. R. APP. P. 16.
Petitioner specifically objected to Judge Seibert’s finding of total non-exhaustion in
his Report and Recommendation. Petitioner argues that the four assignments of error in
the direct appeal to the West Virginia Supreme Court are exhausted. He states that the
federal claims were fairly presented to the West Virginia Supreme Court of Appeals, so they
are exhausted. Petitioner also asserts that his counsel in the appeal to the West Virginia
Supreme Court, Mr. Tipton, “alerted the State Supreme Court to federal constitutional
issues and the clearly established federal law when the admissibility of a defendant’s
confession is in dispute.”
A federal court may only consider those issues the petitioner presented to the state
court. Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509 (1971) (“[W]e have required a state
prisoner to present the state courts with the same claim he urges upon the federal courts.”).
“The exhaustion-of-state-remedies doctrine . . . reflects a policy of federal-state comity . .
. ‘an accommodation of our federal system designed to give the State an initial ‘opportunity
to pass upon and correct’ alleged violations of its prisoners’ federal rights.’” Id. (internal

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citations omitted). Petitioner must “present the state courts with the same claim he urges
upon the federal courts.” Id. “It is not enough that all the facts necessary to support the
federal claim were before the state courts or that a somewhat similar state-law claim was
made.” Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277 (1982) (citations
omitted).
In Petitioner’s first appeal to the West Virginia Supreme Court, his counsel noted
three assignments of error.

The petition was subsequently refused by the court.

Petitioner’s three alleged assignments of error would have been exhausted if he presented
the same claims to this Court. However, Petitioner did not present the same three issues
to this Court because he reworded the federal habeas petition to create constitutional
claims. Petitioner has not raised the same claims in his federal habeas petition that he
raised on direct appeal. Accordingly, the claims raised in his direct appeal are not
exhausted.
Petitioner filed a state petition for a writ of habeas corpus; however, this Court was
not provided with a copy of Petitioner’s petition. Although the Court is not certain of the
Petitioner’s claim in that petition, a review of the docket sheet for the Circuit Court of Marion
County reveals that his petition is still pending. Because the Circuit Court of Marion County
has not yet issued a decision on the merits of Petitioner’s claim, the court has not had a full
and fair opportunity to rule on Petitioner’s claims. Accordingly, the claims alleged in
Petitioner’s state petition for a writ of habeas corpus, whatever they may be, have not been
exhausted.
Petitioner filed a second petition for habeas corpus relief directly with the West
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Virginia Supreme Court, and the court refused the petition. Rule 16 of the West Virginia
Rules of Appellate Procedure covers “original jurisdiction,” including petitions for habeas
corpus. Rule 16(j) of the West Virginia Rules of Appellate Procedures governs rules to
show cause and provides:
If the Supreme Court declines to issue a rule to show cause, such
determination shall be without prejudice to the right of the petitioner to
present a petition to a lower court having proper jurisdiction, unless the
Supreme Court specifically notes in te order denying a rule to show cause
that the denial is with prejudice. An order declining to issue a rule to show
cause does not prevent the petitioner from pursuing the same issues on
appeal following a final order in the lower court.
Importantly, the West Virginia Supreme Court did not refuse the petition with prejudice.
Therefore, Petitioner may pursue further relief before an appropriate West Virginia Circuit
Court. As a result, his claims are not exhausted as Petitioner has additional procedures
available to raise his claims in state court.
Petitioner objected to Judge Seibert’s R & R on the basis that at least some of his
state claims were exhausted. However, after a de novo review, the Court finds that none
of Petitioner’s claims are exhausted as he still has available remedies in State court.
Therefore, Petitioner’s Objection regarding exhaustion is OVERRULED.
B.

Motion to Dismiss Standard

Petitioner argues that “the Magistrate Judge entered an order directing the
Respondent to answer the petition. Therefore, the Court’s order requiring Respondent
Ballard to file an answer was issued only after the Court had fulfilled its Rule 4 obligation.
Therefore, petitioner respectfully requests this Court to find that since the Respondent has

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premised his motion to dismiss on Rule 12(b)(6), the Respondent’s motion is redundant in
that it essentially asks the Court to conduct a pleading examination already complete.”
Habeas Rule 4 does not require a respondent to proceed with an answer to the
exclusion of an initial response by motion, for the rule explicitly provides: “If the petition is
not dismissed [upon initial review by the court] the judge must order the respondent to file
an answer, a motion or other response . . . .” A court that orders the dismissal of a petition
pursuant to Rule 12(b)(6) does not act inconsistent with Rule 4. See also Moore v.
Okuley, 2010 WL 1995828 (D. Alaska May 14, 2010) (holding that summary disposition
of a petition is not inconsistent with Habeas Rule 4).
Accordingly, the Court has found that Petitioner failed to exhaust his state court
remedies and dismissal of the petition pursuant to Rule 12(b)(6) is proper.
V. Conclusion
Upon careful review of the record, it is the opinion of this Court that the magistrate
judge’s Report and Recommendation [Doc. 45] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated therein. Further, the Petitioner’s Objections
[Doc. 48] are OVERRULED. It is further ordered that the Respondent’s Motion to Dismiss
Petitioner’s § 2254 petition [Doc. 39] be GRANTED, and Petitioner’s § 2254 petition be
DENIED and DISMISSED without prejudice to the Petitioner’s right to renew the same
following the proper exhaustion of state remedies.
As a final matter, because this Court has dismissed the petitioner’s constitutional
claims on procedural grounds, a certificate of appealability will not issue unless the

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petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). Upon an independent review of the record, this Court finds that the
petitioner has not made the requisite showing. Accordingly, this Court hereby DENIES a
certificate of appealability. See 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and to
mail a copy to the pro se petitioner.
DATED: April 8, 2013

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