Buffey v. Ballard
Filing
19
MEMORANDUM OPINION AND ORDER DECLINING TO AFFIRM AND ADOPT 7 THE REPORT ANDRECOMMENDATION OF THE MAGISTRATE JUDGE AS PRESENTED BUT DISMISSING 2 HABEAS PETITION; DENYING 3 UNOPPOSED MOTION FOR STAY; AND GRANTING 17 MOTION TO EXCEED PAGE LIMITATION filed by Joseph A. Buffey. This civil action is DISMISSED AND STRICKEN from the active docket of this court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 7/5/12.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOSEPH A. BUFFEY,
Petitioner,
v.
Criminal Action No. 5:12CV58
(STAMP)
DAVID BALLARD, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
DECLINING TO AFFIRM AND ADOPT THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE AS
PRESENTED BUT DISMISSING HABEAS PETITION;
DENYING UNOPPOSED MOTION FOR STAY; AND
GRANTING MOTION TO EXCEED PAGE LIMITATION
I.
Background1
In January 2002, the Harrison County, West Virginia grand jury
returned two indictments against the petitioner, Joseph A. Buffey
(“Buffey”), charging him with one count of burglary, one count of
robbery, five counts of sexual assault in the first degree, one
count of assault during the commission of a felony, one count of
kidnaping, three counts of breaking and entering, one count of
petit larceny, and one count of destruction of property.2
The
1
In his report and recommendation, the magistrate judge
provided a brief summary of a voluminous and complex record in this
case, focusing on the relevant facts and procedural history. In
his objections, the petitioner does not dispute the accuracy of
this portion of the report and recommendation. Thus, this opinion
offers a similar condensed version of the background of this case,
while recognizing that a more complete history and evidentiary
record may become necessary to the consideration of the
petitioner’s claim in the future.
2
These charges arose out of an incident that occurred on
November 30, 2001 in Clarksburg, West Virginia. During the early
morning hours, an elderly woman who lived alone was awakened by an
petitioner eventually pleaded guilty to one count of robbery in the
first degree and two counts of sexual assault in the first degree.
In exchange for his guilty plea, the State dismissed the remaining
counts of the indictments.
On May 21, 2002, the Circuit Court of
Harrison County accepted the petitioner’s plea of guilty and
sentenced him to forty years for the offense of robbery in the
first degree.
That court further sentenced the petitioner to an
indeterminate sentence of not less than fifteen years, nor more
than thirty-five years for each of the offenses of sexual assault
in the first degree.
Each of the sentences was ordered to run
consecutively, for a total sentence of seventy years.
The petitioner did not file a direct appeal, but he did file
a state habeas corpus petition shortly after his sentencing.
In
support of his state habeas petition, the petitioner argued that
his
constitutional
rights
were
violated
due
to
ineffective
assistance of counsel and prosecutorial and police misconduct. The
petitioner also asserted that there may have been other evidence of
reversible
and
prejudicial
errors,
but
that
assistance of counsel to raise these issues.
he
needed
the
After counsel was
appointed for the petitioner in his state habeas proceeding,
counsel for the petitioner filed an amended petition raising the
claim that newly discovered evidence in the form of DNA test
intruder standing beside her bed. The intruder forced her at knife
point to the downstairs portion of her house in search of money and
then forced her back upstairs to the bedroom where he sexually
assaulted her a number of times.
2
results indicated that the petitioner was excluded as a match for
the DNA evidence collected from the victim.
After
testifying
conducting
expert
an
omnibus
agreed
that
hearing,
the
DNA
during
test
which
each
results
were
“inconclusive,” the court denied the petitioner’s state habeas
petition on the merits. The West Virginia Supreme Court of Appeals
refused the petitioner’s appeal of that order. The petitioner then
filed a second state habeas petition based on newly discovered
evidence -- specifically, exculpatory DNA test results that he
alleged establish his actual innocence. That petition is currently
still pending.
On September 19, 2005, the petitioner filed a federal habeas
petition,
reiterating
many
of
the
claims
of
constitutional
violations that he asserted in his state habeas petition.
The
petitioner also argued that the lower court’s failure to reverse
his guilty plea based upon the discovery of new evidence (DNA test
results) violated the Constitution and was clearly wrong.
This
petition was considered on the merits and dismissed with prejudice
on March 29, 2007.
In making his decision, the magistrate judge
relied on the state’s court findings as to the inconclusive nature
of the prior DNA testing.
On March 29, 2007, the district court
adopted the magistrate judge’s recommendation and dismissed the
petition.
The petitioner did not appeal that decision.
The petitioner filed the instant petition on April 25, 2012.
Through
counsel,
the
petitioner
3
alleges
that
new
scientific
evidence proves that both his confession and guilty plea were
false. According to the petitioner, DNA testing conducted pursuant
to
West
Virginia’s
Right
to
DNA
Testing
Act,
§ 15-2B-14, establishes his actual innocence.
W.
Va.
Code
Specifically, the
petitioner asserts: (1) his conviction is invalid because he is
actually innocent of the crimes for which he was convicted; (2) he
was deprived of effective assistance of counsel when his appointed
attorney
failed
to
conduct
a
minimally
adequate
factual
investigation into his innocence before advising him to plead
guilty; (3) he was deprived of effective assistance of trial
counsel when his appointed attorney failed to move to suppress, or
otherwise challenge, his confession; (4) the State obtained his
guilty plea through the presentation of grand jury testimony that
it knew was false and/or misleading; (5) to the extent the West
Virginia state court procedures for post-conviction relief are
construed to deny relief to a petitioner such as him, they are
unconstitutional because they violate due process; and (6) his
conviction
is
invalid
because
the
State
failed
to
disclose
exculpatory evidence that would have changed the outcome of the
proceedings.
After conducting a preliminary review of the file pursuant to
Local Rule of Prisoner Litigation Procedure 83.09, United States
Magistrate Judge John S. Kaull issued a report and recommendation
recommending that the petitioner’s petition for habeas corpus be
dismissed because it is a successive petition and the petitioner
4
has not received authorization from the United States Court of
Appeals
for
petition.
the
Fourth
Circuit
to
file
a
successive
§
2254
The magistrate judge further recommended that the
petitioner’s motion for stay and abeyance be denied as moot.
The
magistrate judge advised the parties that, pursuant to 28 U.S.C.
§ 636(b)(1)(C), any party may file written objections to his
proposed findings and recommendations within fourteen days after
being served with a copy of the report and recommendation.
On May
25, 2012, after receiving an extension of time, the petitioner
filed objections to the report and recommendation.
In conjunction
with his objections, the petitioner also filed a motion to exceed
the page limitation, in which he seeks leave of this Court to file
objections that total sixteen pages.
For the reasons set forth
below, this Court declines to affirm and adopt the report and
recommendation of the magistrate judge as presented, but dismisses
the habeas petition, denies the unopposed motion to stay, and
grants the motion to exceed the page limitation.
II.
Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
of
the
magistrate
recommendation to which objection is timely made.
judge’s
As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
See Webb v. Califano, 458 F.
Supp. 825 (E.D. Cal. 1979). The petitioner has filed objections in
5
this case.
Thus, this Court will undertake a de novo review as to
those portions of the report and recommendation to which objections
were made.
III.
Discussion
The report and recommendation addresses two key questions: (1)
whether the subject petition is procedurally defaulted because it
is a second or successive petition within the meaning of 28 U.S.C.
§
2244;
and
(2)
whether
the
petition
was
filed
without
the
petitioner first moving the United States Court of Appeals for the
Fourth Circuit for an order pursuant to 28 U.S.C. § 2244(b)(3)(A)
authorizing
this
Court
to
consider
the
application.
After
considering the arguments and case law presented by the petitioner,
the magistrate judge concludes: (1) there is no precedent from the
Supreme Court or the Fourth Circuit which clearly authorizes a
district court to make a threshold determination that a petition
such as Buffey’s is not a second or successive petition under
§ 2244(b); and (2) because Buffey did not obtain an order from the
Fourth Circuit authorizing this Court to consider the petition
prior to its filing, this Court is without jurisdiction to now
consider the petition.
In his objections to the report and recommendation, the
petitioner
argues
that
both
conclusions are incorrect.
of
the
magistrate
judge’s
legal
First, the petitioner contends that
this Court does, in fact, have the authority to consider the
threshold question of whether a habeas petition is second or
6
successive under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”).
Second, the petitioner asserts that the
magistrate judge incorrectly concluded that even if the instant
petition were to be deemed second or successive under the AEDPA, it
is automatically subject to dismissal because Buffey has not yet
sought a ruling from the Fourth Circuit as to whether he meets one
of the authorized grounds to proceed. This Court will address each
of those objections in turn.
A.
Statutory Framework
The AEDPA imposes strict limits on the consideration of
“second or successive” habeas petitions, which are codified in 28
U.S.C. § 2244.
“Before filing such a petition in the district
court, the applicant must obtain leave to do so from the court of
appeals.”
In re Williams, 444 F.3d 233, 235 (4th Cir. 2006).
Leave to file a second or successive petition “may be granted only
if the proposed habeas petition contains at least one claim that
(a) rests on a new rule of constitutional law, made retroactive by
the Supreme Court, or (b) rests on a previously undiscoverable
factual basis that would demonstrate the applicant’s innocence by
clear
and
convincing
evidence.”
Id.
(citing
28
U.S.C.
§ 2244(b)(2); United States v. Winestock, 340 F.3d 200, 204 (4th
Cir. 2003)).
As the Fourth Circuit has explained, “not every numerically
second petition is a ‘second or successive’ petition within the
meaning of the AEDPA.”
Id.
Rather, to be considered successive,
7
the second petition must be a second attack on the same conviction,
and the first petition must have been finally adjudicated on the
merits.
See In re Williams, 444 F.3d at 236.
A claim presented in
a second or successive habeas petition that was not presented in a
prior petition “shall be dismissed,” unless the petitioner can show
that he satisfies one or both of the statutorily enumerated
exceptions.
See 28 U.S.C. § 2244(b)(2).
However, the strict
procedural regime and substantive standards of § 2244 only apply if
the petitioner’s current petition is “second or successive” within
the meaning of the AEDPA.
Benchoff v. Colleran, 404 F.3d 812, 816
(3d Cir. 2005).
B.
Requirement that Court Make Threshold Determination Whether
Petition is Second or Successive in Order to Determine
Jurisdiction or Lack Thereof
The report and recommendation correctly states that Buffey’s
April 25, 2012 petition is the numerically second federal habeas
petition he has filed regarding his underlying claim that DNA
evidence excludes him as the perpetrator of the crime and that he
is actually innocent.
The magistrate judge also notes that
Buffey’s first § 2254 petition was dismissed on the merits.
The
petitioner argues that his current petition is based on DNA test
results that were obtained using advanced DNA technology that was
unavailable at the time of the earlier proceedings, and therefore,
it is not a second or successive petition within the meaning of
§ 2244.
The magistrate judge acknowledges that at the time of the
filing of his first petition, Buffey may not have had a way to know
8
that five years later, a new and better DNA test would seemingly
exonerate him.
Thus, the magistrate judge declines to rule on the
issue of whether the instant petition is a second or successive
petition within the meaning of § 2244.
Instead, the magistrate
judge concludes that it is for the Fourth Circuit Court of Appeals
to determine whether a claim based upon new DNA analysis and
results that were not available when the first petition was denied
on the merits can be classified as non-successive.
The petitioner objects to this conclusion, arguing that the
Supreme
Court
has
made
clear
that
district
courts
have
jurisdictional authority to make the threshold determination of
whether a petition is second or successive.
Citing to various
Supreme Court cases, the petitioner asserts that the Supreme Court
has never suggested that it is jurisdictionally improper for the
district court to entertain the question of whether a petition is
second or successive.
This Court recognizes that “[w]hen a second or successive
habeas petition is filed in a district court without the permission
of the Court of Appeals, the District Court’s only option is to
dismiss the petition or transfer it to the appropriate Court of
Appeals pursuant to 28 U.S.C. § 1631.”
App’x 134, 136-37 (3d Cir. 2010).
Hatches v. Schultz, 381 F.
However, this rule prohibiting
the district court from considering the merits of a second or
successive petition does not preclude the district court from first
answering the threshold question of whether the petition is, in
9
fact, second or successive. In Hatches, the United States Court of
Appeals for the Third Circuit held:
In deciding that it would not be in the interest of
justice to transfer the petition to the Fourth Circuit,
the District Court properly considered whether [the
petitioner] had alleged facts sufficient to bring his
petition within the gatekeeping requirement of § 2255
permitting ‘second or successive’ petitions based upon
newly discovered evidence or a new rule of constitutional
law.
Id. at 137; see also Thomas v. Superintendent/Woodbourne Corr.
Facility, 136 F.3d 227, 228 (2d Cir. 1997) (instructing a district
court to determine whether a petition was second or successive by
considering
prejudice
“whether
and
whether
the
the
prior
petition
instant
was
petition
dismissed
attacks
the
with
same
judgment that was attacked in the prior petition.”); Liriano v.
United States, 95 F.3d 119, 122 (2d Cir. 1996) (stating that when
considering a transfer pursuant to § 1631, the district court
should consider the fact that there will be some delay between the
filing of the petition for habeas corpus relief in the district
court, and that court’s ascertainment that it is presented with a
second or successive petition).
The Fourth Circuit has held that “[i]n the absence of prefiling authorization, the district court lacks jurisdiction to
consider an application containing abusive or repetitive claims.”
Winestock, 340 F.3d at 205 (citing Evans v. Smith, 220 F.3d 306,
325 (4th Cir. 2000)).
However, Winestock does not stand for the
proposition that the district court is barred from classifying a
petition as second or successive.
10
In fact, the court stated in
Winestock that “[t]he court of appeals must examine the application
to
determine
§ 2244(b)(2).”
whether
Id.
it
contains
any
claim
that
satisfies
This language suggests that if a petition is
initially found to be second or successive by the district court,
the role of the court of appeals is to then determine if it falls
within one of the statutory exceptions that would allow it to
survive
dismissal.
The
exclusive
jurisdiction
provision
of
§ 2244(b)(3) -- which reserves to the courts of appeals the
question of whether a petition already found to be successive
should nonetheless be authorized to proceed -- does not prevent
this Court from first determining whether the petition is second or
successive at all.
See Scott v. United States, 761 F. Supp. 2d
320, 326 (E.D. N.C. 2011) (finding that the petitioner’s claim that
his drug trafficking conviction was the result of fabricated
evidence, based upon after-acquired evidence arising from the
prosecution of officers involved in the case, was not a “second or
successive” § 2255 motion).
Thus, this Court declines to affirm
and adopt the magistrate judge’s finding that the district court
lacks jurisdiction to make a threshold determination as to whether
a habeas corpus petition is second or successive.
See Cooper v.
Fox, No. 3:10-cv-01119, 2011 WL 7138912, at *2 (S.D. W. Va. Nov. 9,
2011) (deciding first the “threshold question” of whether or not
the instant petition qualified as “second or successive” under
§ 2244(b), then concluding that because the petition is second or
successive, the district court has no jurisdiction to consider it).
11
This
Court
finds
that
it
has
a
duty
to
make
the
initial
determination as to whether the petition is second or successive,
and if it is, dismiss the case for lack of jurisdiction.
Then,
only if the court of appeals grants the required authorization, can
this Court decide the merits of the second or successive claims.
The magistrate judge declined to answer the question of
whether Buffey’s motion is second or successive.
This Court,
however, finds that this petition should be categorized as second
or
successive
because
Buffey’s
claim
that
DNA
test
results
constitute newly discovered evidence that exonerates him is the
same claim that was previously presented in his 2005 federal habeas
petition, which was dismissed on the merits.
This Court agrees
with the magistrate judge that there is no case law from the Fourth
Circuit
discussing
the
gatekeeping
provisions
of
28
U.S.C.
§ 2244(b) with respect to a second petition filed based upon
advanced DNA analysis and results that were not available when the
first petition was denied on the merits. However, in In re McGinn,
213 F.3d 884, 885 (5th Cir. 2000), the Fifth Circuit held that the
habeas petitioner was not entitled leave to file a successive writ
on the ground that improved DNA testing was available.
In that
case, the petitioner sought authorization to re-test physical
evidence, arguing that developing science enhanced the possibility
of a better DNA test compared to the DNA testing used at the time
of his original trial.
Id.
The court held that the petitioner had
failed to make a submission that any testing methods developed in
12
the five years following the testing done for trial were not
available to allow timely submission to the court at the time of
his first petition.
Id.
The Fifth Circuit did not reach the issue
of whether the petitioner could meet the statute’s innocence
requirement.
As the Fifth Circuit explained, it is not this
Id.
the court’s intention to “look away from exculpatory evidence with
. . . potential explanatory power.”
Id.
But, as in In re McGinn,
Congress has withheld jurisdiction from this Court to grant the
requested relief here.
C.
Authority to Transfer Petition to Fourth Circuit
In his report and recommendation, the magistrate judge also
held that the petitioner’s failure to obtain an order from the
Fourth Circuit, prior to filing, authorizing this Court to consider
his petition prevents this Court from considering his petition.
The petitioner counters that if and when this Court determines that
his petition is second or successive, it may then be transferred to
the Fourth Circuit, where the petitioner must show that his case
satisfies one or both of the exceptions provided by § 2244(b)(2).
At that time, argues the petitioner, the Fourth Circuit would
consider whether a reasonable factfinder would have convicted the
petitioner in light of the new DNA evidence.
recommendation,
as
well
as
the
petitioner’s
The report and
objections,
also
reference the possibility of transferring the case pursuant to 28
U.S.C. § 1631.
Both the magistrate judge and the petitioner
acknowledge that the Fourth Circuit has yet to expressly apply
13
§ 1631 to a scenario such as this, where a second or successive
petition would be transferred from the district court where filed
to the court of appeals without prior dismissal.
This Court sees no reason to apply the transfer provisions of
§ 1631 to this case.
The Fourth Circuit has explained that when
the district court receives a petition with repetitive claims, the
appropriate solution is to “afford the prisoner the choice of
‘seeking authorization from the court of appeals for his second or
successive claims, or of amending his petition to delete those
claims
so
he
can
proceed
with
the
claims
that
require
no
authorization.’” Winestock, 340 F.3d at 205-06 (quoting Pennington
v. Norris, 257 F.3d 857, 858 (8th Cir. 2001)).
Because this Court
has determined that the petitioner’s habeas petition is second or
successive, the petitioner may now seek authorization from the
court of appeals for his claims, or amend his petition to delete
those second or successive claims.
D.
Unopposed Motion for Stay
In his objections, the petitioner argues that because the
parallel state court proceedings in this case are ongoing, this
Court should stay this civil action.
According to the petitioner,
neither this Court nor the Fourth Circuit should consider the
important questions presented in this case while development of the
factual record is still in progress in the state court.
Moreover,
the petitioner asserts that this federal habeas petition will be
entirely moot if the state court grants relief.
14
The petitioner
represents that the respondent does not object to an order of this
Court directing the entire federal petition to be stayed pending
the outcome of the state court proceedings.
Although both parties agree that it would be an unnecessary
expenditure of this Court’s resources for it to decide these
complex and fact-bound questions of federal habeas procedure at the
present time, this Court finds that it lacks jurisdiction to
consider the motion to stay.
See Spivey v. State Bd. of Pardons
and Paroles, 279 F.3d 1301, 1303-04 (11th Cir. 2002) (affirming the
district court’s denial of petitioner’s motion for a stay of
execution in connection with a second or successive habeas corpus
claim for lack of jurisdiction).
Accordingly, the motion to stay
must be denied.
IV.
Conclusion
For the reasons stated above and based upon a de novo review,
this Court concurs in the result reached by the magistrate judge,
but DECLINES TO AFFIRM AND ADOPT the report and recommendation, as
presented.
(ECF No. 7.)
Accordingly, the petition is DISMISSED.
The petitioner may seek leave of the United States Court of Appeals
for the Fourth Circuit to file a second or successive petition.
This Court AFFIRMS and ADOPTS the magistrate judge’s recommendation
that the motion for stay and abeyance (ECF No. 3) be DENIED.
Further, this Court DENIES the petitioner’s unopposed motion to
stay proceedings for lack of jurisdiction. The petitioner’s motion
to exceed page limitations (ECF No. 17) is GRANTED.
15
It is further
ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
To obtain a certificate of appealability, a petitioner must
make a substantial showing of the denial of a constitutional right
by establishing “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.”
Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal quotation omitted); see also MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003). When a district court
dismisses a petition on procedural grounds, the determination of
whether
a
certificate
of
appealability
should
issue
has
two
components: (1) the petitioner must show that reasonable jurists
would find it debatable whether the court was correct in its
procedural ruling; and (2) the petitioner must show that reasonable
jurists would find it debatable whether the petition states a valid
claim for denial of a constitutional right.
Id. at 484.
To obtain
a certificate of appealability, the petitioner must satisfy both
components.
Id. at 484-85.
As stated above, this Court concludes that Buffey’s petition
is a second or successive petition that has not been authorized by
the court of appeals.
Buffey has not established that jurists of
reason could debate the correctness of this procedural ruling to
dismiss Buffey’s unauthorized second or successive petition for
lack of jurisdiction.
Accordingly, the petitioner is DENIED a
16
certificate of appealability.
This Court notes the distinction
between the certificate of appealability requirement of § 2253, as
described by Miller-El v. Cockrell, and the authorization for a
second and successive petition requirement of § 2244.
See United
States v. Hardin, 481 F.3d 924, 925-26 (6th Cir. 2007) (stating
that a certificate of appealability pursuant to § 2253 is a
separate procedural hurdle from the authorization required under
§ 2244 to file a second or successive habeas petition).
This
Court’s denial of a certificate of appealability applies to the
former, not the later.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this memorandum
opinion and order to the petitioner and to counsel of record
herein.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk
is DIRECTED to enter judgment on this matter.
DATED:
July 5, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?