Hunt v. Ballard

Filing 66

AMENDED ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS. (copy 4CCA) Signed by Chief Judge Gina M. Groh on 8/11/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

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

RICHARD LEE HUNT, JR.,
Petitioner,
v.

CIVIL ACTION NO.: 3:16-CV-29
(GROH)

DAVID BALLARD,
Respondent.

AMENDED ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART
REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF
HABEAS CORPUS
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge James E. Seibert. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Seibert for submission
of an R&R.

On March 20, 2017, Magistrate Judge Seibert issued his R&R, which

recommends that this Court grant the Respondent’s Motion for Summary Judgment [ECF
No. 32] and deny and dismiss with prejudice the Petitioner’s 28 U.S.C. § 2254 petition
[ECF No. 1].
Objections to Magistrate Judge Seibert’s R&R were due within fourteen days of
the Petitioner being served with a copy of the same. 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b).

Service was accepted at the Huttonsville Correctional Center in

Huttonsville, West Virginia, on March 23, 2017. On April 3, 2017, the Petitioner timely
filed his objections to the R&R [ECF No. 55].

I. Background
On May 18, 2000, in Calhoun County, West Virginia, a jury convicted the Petitioner
on two counts of sexual abuse in the first degree and two counts of sexual abuse by a
custodian. ECF No. 12-1 at 6. The Petitioner filed a notice of intent to appeal, which was
refused by the West Virginia Supreme Court of Appeals (“WVSCA”) on March 21, 2001.
ECF No. 12-2 at 2. Subsequently, the Petitioner filed a pro se habeas petition in the
Circuit Court of Calhoun County [ECF No. 12-5] on September 27, 2006, which he
amended through appointed counsel on May 12, 2008. See ECF No. 12-6.
On January 21, 2014, the circuit court entered a judgment order granting the
Petitioner’s amended petition, on the ground that the Petitioner was denied his right to a
fair trial and due process. ECF No. 12-1 at 19. The state appealed, arguing “that the
Circuit Court erred in its findings as to application of West Virginia law, or in the very least,
in its conclusion that the facts as contained in Ground Eight [of the Petitioner’s habeas
petition] amounted to anything more than harmless error.” ECF No. 12-7 at 9. The
WVSCA agreed, and it reversed the circuit court’s order. Ballard v. Hunt, 772 S.E.2d 199
(W. Va. 2015). It reasoned that although the prosecutor’s comments and the expert
opinion evidence as to pedophilia were improper under Rule 404(a) of the West Virginia
Rules of Evidence, the error was harmless given that the state’s evidence overwhelmingly
established the Petitioner’s guilt. Id. at 205.
In his § 2254 Petition, the Petitioner contends he was denied due process of law
because of the unfair prejudice resulting from references to him as a pedophile during his
trial. ECF No. 1 at 6. The Petitioner further asserts he was denied equal protection of

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the law when the WVSCA ruled that the expert witness’s opinion evidence was
inadmissible, but nevertheless, it denied him a new trial. Id. at 9-10.
Here, the Respondent argues there is no clearly established federal law
demonstrating that the admission of the expert’s testimony, directly identifying the
Petitioner as a pedophile, is so prejudicial that it constitutes a due process violation. ECF
No. 33 at 7. Moreover, the Respondent avers that even if the admission of the propensity
evidence constituted a violation of due process, Petitioner is still not entitled to habeas
relief because the admission was merely harmless error. Id. at 11. The magistrate judge
did not reach these arguments in the R&R because he found that neither of the
Petitioner’s claims have been fully exhausted.
II. Standard of Review
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, objections to a magistrate judge’s R&R must be specific. See Orpiano v.
Johnson, 687 F.2d 44, 48 (4th Cir. 1982); see also Parker v. Comm’r of Soc. Sec., No.
4:11cv00030, 2012 WL 1356593, at *3 (W. D. Va. Apr. 19, 2012). General objections or
mere reiterations of arguments already presented to the magistrate judge “have the same
effect as a failure to object” and do not warrant de novo review. Parker, 2012 WL
1356593, at *3 (internal quotations and citation omitted); see also United States v.
Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007); Page v. Lee, 337 F.3d 411, 416 n.3 (4th
Cir. 2003). The Court is aware of the Petitioner’s pro se status. Pro se pleadings are
held to less stringent standards than those drafted by licensed attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Accordingly, the Court construes liberally

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the Petitioner’s arguments in opposition to the R&R, but it will not create objections where
none exist. Thus, the Court will review de novo only those portions of the R&R to which
the Petitioner has made specific objections. The remainder of the R&R to which “general
and conclusory” objections have been made will be reviewed for clear error. See McGhee
v. Colvin, 6:14-cv-02644-JMC, 2015 WL 5707866, at *1 (Sept. 25, 2015) (internal
quotations and citation omitted).
III. Discussion
The Petitioner raises several objections to the R&R. To the extent the Petitioner
raises arguments that direct this Court to a specific error by the magistrate judge, the
Court will conduct de novo review. See Orpiano, 687 F.2d at 47. However, to the extent
the Petitioner’s objections are general or conclusory in nature, or are mere reiterations of
arguments already rejected by the magistrate judge, the Court is not obligated to conduct
de novo review. McGhee, 2015 WL 5707866, at *1.
Here, the Petitioner objects to the magistrate judge’s recommendation that
Grounds Two and Three of his petition be dismissed as unexhausted because they were
not fairly presented to the WVSCA. More specifically, he contends the circuit court and
the WVSCA were both given the opportunity to consider, and did in fact consider, whether
he was denied due process as a result of prejudicial statements made by the prosecutor
and expert witness during his trial. This Court finds that the Petitioner has exhausted
ground two of his petition, regarding whether his due process rights were violated,
because that issue was fairly presented to and considered by the WVSCA. However,
neither the circuit court nor the WVSCA were given the opportunity to consider the equal
protection claim raised in ground three of the petition. Therefore, ground three has not

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been fairly presented and shall be dismissed for lack of exhaustion. Accordingly, the
Petitioner’s objection is OVERRULED IN PART.
With regard to Ground Two, 28 U.S.C. § 2254(d) “bars relitigation of a claim
‘adjudicated on the merits’ in state court unless, among other exceptions, the earlier statecourt ‘decision’ involved ‘an unreasonable application’ of ‘clearly established Federal law,
as determined by’ this Court.” Harrington v. Richter, 562 U.S. 86, 87 (2011) (quoting 28
U.S.C. § 2254(d)(1)). Even “[w]here the state-court decision has no explanation, the
habeas petitioner must still show there was no reasonable basis for the state court to
deny relief.” Id.
An unreasonable application of federal law is different than an incorrect
application. Williams v. Taylor, 529 U.S. 362, 410 (2000). “[A] federal habeas court may
not issue the writ simply because [it] concludes in its independent judgment that the
relevant state-court decision applied established federal law erroneously or incorrectly.”
Renico v. Lett, 559 U.S. 766, 772 (2010). This is a “highly deferential standard for
evaluating state-court rulings, and demands that state-court decisions be given the
benefit of the doubt.” Id.
Therefore, this Court must determine whether the WVSCA unreasonably applied
clearly established Federal law when it determined the admission of propensity evidence
at the Petitioner’s state trial was harmless error. Harrington, 562 U.S. at 87. This Court
may not issue the writ merely because it disagrees with the state court’s decision. Renico,
559 U.S. at 772. Rather, the WVSCA’s decision must “be given the benefit of the doubt.”
Id.

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Upon review, this Court cannot find the WVSCA’s decision unreasonably applied
Federal law. The WVSCA acknowledged the trial court’s error in admitting the propensity
evidence, but found it was subject to a harmless error analysis. Hunt, 772 S.E.2d at 20405. The court proceeded to explain that “[t]he evidence of the State overwhelmingly
established Hunt’s guilt of the crimes charged.” Id. at 205. The evidence included a
telephone conversation between the Petitioner and the victim, the Petitioner’s
opportunities to commit the offense, testimony regarding the victim’s behavior, and the
Petitioner’s harassment of the victim after the suspicions of abuse were reported. Id. The
WVSCA determined, “the prosecutor’s references and opinion testimony concerning
pedophilia were absolutely unnecessary to establish Hunt’s guilt.” Id. The WVSCA’s
conclusion does not present an unreasonable application of Federal law. Further, the
Petitioner has failed to show that the WVSCA had no reasonable basis for denying him
relief. Harrington, 562 U.S. at 87. Therefore, pursuant to 28 U.S.C. § 2254(d), relitigation
of ground two is prohibited. Id.
IV. Conclusion
Therefore, the Court finds that Magistrate Judge Seibert’s Report and
Recommendation [ECF No. 52] should be, and is, hereby ADOPTED IN PART. 1 The
Court ORDERS that the Respondent’s Motion for Summary Judgment [ECF No. 32] is
hereby GRANTED. The Court further ORDERS that the Petitioner’s § 2254 petition [ECF
No. 1] is DENIED and DISMISSED WITHOUT PREJUDICE and this case is STRICKEN
from its active docket.

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Magistrate Judge Seibert’s report and recommendation is adopted in part only insofar as it contradicts
this Court’s finding that ground two of the petition has been fully exhausted.

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The Petitioner has not met the requirements for issuance of a certificate of
appealability. A court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §.2253(c)(2).
If a district court denies a petitioner’s claims on the merits, then “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“If, on the other hand, the denial was procedural, the petitioner must show ‘that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” United States v. McRae, 793 F.3d 392, 397
(4th Cir. 2015) (quoting Slack, 529 U.S. at 484). Here, upon a thorough review of the
record, the Court concludes that the Petitioner has not made the requisite showing.
Accordingly, the Petitioner’s Motion for Certificate of Appealability [ECF No. 64] is
DENIED.
The Clerk is DIRECTED to enter a separate judgment order in favor of the
Respondent. The Clerk is further DIRECTED to transmit copies of this Order to all counsel
of record herein and to mail a copy to the pro se Petitioner by certified mail, return receipt
requested.

DATED: August 14, 2017

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