Meckling v. Ballard

Filing 71

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 69 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The petitioner's unopposed 58 motion for stay and abeyance is hereby GRANTED. It is ORDERED that the May 2, 2016 42 motion to sta y be GRANTED in part and denied in part. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/5/18. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 9/5/2018: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATRICK JOSEPH MECKLING,
Petitioner,
v.

Civil Action No. 5:15CV106
(STAMP)

JOHN MURPHY, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The pro se1 petitioner, an inmate then-incarcerated at the Mt.
Olive Correctional Center (“MOCC”), filed this petition for habeas
corpus under 28 U.S.C. § 2254 challenging decisions made by the
Circuit Court of Ohio County, West Virginia.

ECF No. 1 at 1-2.

The jury returned a guilty verdict to abduction with intent to
defile and a guilty verdict as to battery, a lesser-included
offense of malicious assault charges from driving while revoked for
driving under the influence-second offense. ECF No. 32-1 at 28-29.
After

the

information

jury

was

charging

dismissed,
petitioner

the

State

with

filed

being

the

a

recidivist

same

person

previously convicted at least twice of felonies punishable by
confinement

1

in

the

penitentiary.

ECF

No.

32-1

at

36-37.

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

Petitioner was sentenced to life on the abduction with intent to
defile

and

a

one-year

sentence

conviction, to run concurrently.

on

the

misdemeanor

battery

ECF No. 32-1 at 58.

In his direct appeal, the petitioner raises two grounds for
relief: (1) the trial court erred when it had petitioner placed in
handcuffs in front of the jury, and then refused to grant a
mistrial; and (2) the trial court erred when it held that only two
of the three felonies required for a life recidivist sentence need
to be violent.

ECF No. 32-2 at 24.

On May 22, 2008, the West

Virginia Supreme Court of Appeals (“WVSCA”) refused petitioner’s
appeal.

Id.

Pursuant to West Virginia Code § 53-4A-1, et. seq., the
petitioner filed a pro se petition for habeas corpus.

ECF No. 66.

The petition raises four grounds: (1) prosecutorial misconduct
occurred when petitioner’s conviction was obtained by testimony
coerced from the alleged victim (ECF No. 68-3 at 5); (2) counsel
was ineffective for failing to subpoena three key witnesses (id.);
(3) his conviction was obtained via the use of a tainted jury
because one of the last jurors selected pointed at the petitioner
in front of other jurors and told them that the petitioner was
guilty

(id.

at

5),

and

because

the

petitioner

was

forcibly

handcuffed in front of the jury (id. at 11); (4) the imposition of
a

recidivist

life

sentence

was

unconstitutional

because

petitioner’s 1997 felony convictions for forgery and uttering were

2

used as one of the predicate convictions and they were nonviolent
crimes for which the petitioner never served time in a penitentiary
(id. at 6).

On December 9, 2008, by memorandum of opinion and

order entered in petitioner’s underlying criminal case, this first
petition was denied without a hearing.

ECF No. 32-2 at 26-27.

Petitioner then filed a renewed petition for writ of habeas corpus
in response.

ECF No. 32-4 at 23.

The Circuit Court of Ohio County

issued a supplemental memorandum of opinion and order regarding the
first memorandum of opinion and order’s perceived failure to
contain specific findings of fact and conclusions of law, and again
directing that the petition be dismissed without a hearing.
No. 32-2 at 29.

The petitioner did not appeal.

ECF

ECF No. 69 at 9.

In addition, the petitioner filed an original jurisdiction pro
se petition for habeas relief in the WVSCA.

ECF No. 32-2 at 52.

The petitioner alleged that: (1) prosecutorial misconduct occurred
when his conviction was obtained by testimony coerced from the
alleged victim (ECF No. 32-2 at 55); (2) counsel was ineffective
for failing to subpoena five witnesses (id.); (3) his conviction
was obtained via the use of a tainted jury because when selecting
potential jurors for his case, one juror selected pointed at the
petitioner in front of other jurors and told them that petitioner
was guilty (id.), and because petitioner was forcibly handcuffed in
front of the jury for no apparent reason (id. at 62); (4) the
imposition

of

a

recidivist

life

3

sentence

violates

the

proportionality clause in Article III, Section 5 of the West
Virginia Constitution (id. at 55-56); (5) the prosecution did not
follow West Virginia Code § 61-11-18 in sentencing petitioner to
“recidivist life” (id. at 57); and (6) petitioner’s conviction was
obtained by the prosecution’s unconstitutional failure to permit
the jury to hear facts (id. at 58).

Ultimately, once the case

reached the WVSCA, the court held that petitioner’s habeas corpus
petition should be denied and that he is not entitled to a new
trial.

ECF No. 37-2 at 16.

The petitioner filed a third pro se habeas petition, arguing
that: (1) petitioner was denied due process as secured by the
Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution when the prosecuting attorney failed to prove beyond
a reasonable doubt the five elements of the crime of abduction (ECF
No. 42-1 at 4); (2) petitioner’s Fourteenth Amendment due process
rights were violated when the prosecutor threatened to prosecute
the alleged victim in order to obtain her testimony (id. at 5); (3)
petitioner’s Sixth Amendment rights to effective assistance of
counsel were violated by trial counsel’s defective and prejudicial
performance

when

counsel

failed

to

investigate

and

subpoena

impeachment witnesses (id. at 6), and when counsel failed to object
and explain the relevancy of the prior Family Court proceedings
(id.); and (4) petitioner’s Eighth Amendment rights were violated
by his life recidivist sentence, which was unconstitutionally

4

disproportionate (id. at 7).

The WVSCA ultimately approved the

lower court’s findings that each of the grounds were finally
adjudicated and/or waived by the petitioner in a previous action,
and that petitioner’s claim that his prior uttering conviction
could not be a predicate offense for a recidivist life sentence had
already been raised on direct appeal and refused by the WVSCA. ECF
No. 68-8 at 65.
The petitioner then filed his fourth pro se habeas petition
raising one issue — petitioner’s federal and state constitutional
rights were violated by previous habeas counsel’s ineffectiveness
in failing to properly investigate and question jurors regarding
their having viewed petitioner in shackles.

ECF No. 58-3 at 5.

This action is still pending.
In addition to his state habeas petitions, the petitioner
filed a federal habeas petition raising the following grounds for
relief: (1) the state failed to prove essential facts necessary for
a conviction of abduction with intent to defile (ECF No. 16 at 6),
noting in his second memorandum of support, for the first time,
that petitioner’s rights based on the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution were violated in
connection with this claim (ECF No. 22 at 1); (2) petitioner was
denied his constitutional rights to due process of law and a fair
and impartial trial when the trial judge permitted him to be
shackled and handcuffed in the presence of jurors (ECF No. 16

5

at 8); (3) petitioner was denied due process of law when a former
conviction for uttering a forged writing was used to impose a
habitual life sentence (id. at 11); (4) the habitual life sentence
petitioner received exceeded the lawful jurisdiction of the trial
court (id. at 13, 21-23); and (5) petitioner’s First, Sixth, and
Fourteenth Amendment rights were violated when trial, appellate,
and habeas counsel were ineffective for committing multiple acts of
omission

and

commission

before,

during,

and

after

trial,

at

sentencing, and in his post conviction proceedings (id. at 23-26).
The petitioner also seeks a second stay and abeyance asserting
that Grounds One, Three, and Four have been exhausted, and that he
has filed another state habeas petition that will exhaust Ground
Two.

Id.

ECF No. 58 at 1-2.

Moreover, the petitioner argues that

under Rhines v. Weber, 544 U.S. 269, 278 (2005), he has “good
cause,” for failure to exhaust his Ground Two claim due to habeas
counsel’s ineffectiveness to properly investigate and question
jurors as ordered by the Circuit Court of Ohio County, citing to
Treino v. Thaler, 185 L.Ed.2d 1044, 1056 (2013); Martinez v. Ryan,
566 U.S. 1 (2012); Coleman v. Thompson, 501 U.S. 722 (1991), and
Syl. Pt. 4; Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (W.
Va. 1981).

Id. at 2.

Petitioner further attaches an affidavit,

which he asserts is newly discovered evidence, from a former juror
attesting

that

seeing

influenced his decision.

the

petitioner

shackled

ECF Nos. 58 at 2-3, 12.

6

affected

and

Finally, the

petitioner asserts that he has not engaged in any intentional
litigation tactics with the purpose to cause delay.

ECF Nos. 58

at 3, 58-2 at 1. Specifically, even though the previous motion for
stay was lifted on June 19, 2017 and respondent was directed to
answer the petition by September 21, 2017, he did not receive the
new juror affidavit until September 5, 2017 and Huttonsville
Correctional Center (“HCC”),2 was on lockdown at that time.

ECF

Nos. 58 at 3, 58-2 at 1.
The respondent argues it has no objection to the stay, given
that “[p]etitioner has conscientiously pursued his unexhausted
claims in state court.”
asserts

that

a

general

ECF No. 60 at 1.
challenge

to

Further, the respondent
petitioner’s

recidivist

sentencing was raised in a direct appeal that was refused by WVSCA,
and that the WVSCA has not reviewed the challenges raised in
Grounds Three and Four of petitioner’s federal habeas petition.
Id. at 1-2.

In summary, the respondent “does not object to

[p]etitioner’s request for a stay, but identifies that [p]etitioner
may wish to amend his current state habeas petition to include the
claims raised in Grounds Three (3) and Four (4) of his federal
habeas petition.”

Id. at 2.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of
Prisoner Litigation 2, this case was referred to United States

2

HCC is petitioner’s present place of incarceration.
69 at 1 n.1.
7

ECF No.

Magistrate Judge Michael John Aloi.
entered

a

report

and

The magistrate judge then

recommendation.

ECF

No.

69.

In

that

recommendation, the magistrate judge recommended that the petition,
though unexhausted when filed, should be liberally construed nunc
pro tunc, as a mixed petition at the time that it was filed, and
petitioner should be granted a second stay to complete exhaustion
of the remainder of his claims via an amended petition in his nowpending fourth state habeas.

ECF No. 69 at 41.

Petitioner’s

Grounds One, Two, and Three will be exhausted; Ground Four and
petitioner’s original Ground Five with its eighteen sub-parts are
not.

Id.

If petitioner does not raise them in an amended petition

in his pending fourth state habeas petition, he will lose them
forever.

Id.

Petitioner was warned that no further stays will be

granted and that he must raise and exhaust all of his remaining
claims in state court before moving to reinstate this case, or they
will be dismissed.
abeyances granted.

Id.
Id.

There will be no further stays and
The magistrate judge further recommended

that the petitioner be directed to file (1) quarterly reports,
beginning February 1, 2019, regarding the status of his state
habeas and appeals on the unexhausted claims he intends to pursue
in his federal § 2254 petition; and (2) a notice of exhaustion
within thirty days from the date his state court remedies have been
fully exhausted.

ECF No. 69 at 42.

Petitioner must move for

reinstatement of this action to the active docket of the Court

8

within thirty days from the date his state court remedies have been
exhausted.

Id.

In support of this recommendation, the magistrate judge first
addressed the petitioner’s claim that the State failed to prove
essential facts necessary for a conviction of abduction with intent
to defile (Ground One), the magistrate judge found that while the
claim was not exhausted at the time petitioner first filed his
petition, it has been exhausted by the appeal of the claim in his
third state habeas petition and its appeal.

ECF No. 69 at 31-32.

Second, concerning petitioner’s claim that he was denied his
constitutional

rights

to

due

process

of

law

and

a

fair

and

impartial trial when the trial judge permitted him to be shackled
and

handcuffed

in

the

presence

of

jurors

(Ground

Two),

the

magistrate judge found that the petitioner did not allege a
violation of his federal constitutional rights.

ECF No. 69 at 32.

Specifically, although this claim was not the same claim that
petitioner exhausted in the appeal of his second state habeas,
“. . . docketing [the petitioner’s] first motion to stay again as
the motion to amend it was also intended to be would ‘cure’ this
issue.”
Ground

Id.
Two,

different,”

The magistrate judge also found that with respect to
petitioner’s
and

that

fourth

“[e]ven

if

habeas
[the

petition

is

petitioner]

“entirely
ultimately

exhausts this [ineffective assistance of habeas counsel claim
(“IAC”)], because it is not one of the IAC of habeas counsel that

9

[the petitioner] originally raised here, and does not relate back
to any IAC habeas counsel claim already so raised, it is untimely
and cannot be included in any future amended petition.”

Id.

Third, with regard to petitioner’s claim that he was denied
due process of law when a former conviction for uttering a forged
writing was used to impose a habitual life sentence (Ground Three),
the magistrate judge found that the petitioner did not allege a
violation of his federal constitutional rights or claim under
federal law.

The petitioner’s similar claim based on the Eighth

Amendment in his third state habeas is not the same claim.

Id.

However,

the

the

magistrate

judge

concludes

that

docketing

petitioner’s “first motion to stay as the motion to amend it was
also intended to be would ‘cure’ this issue.”

Id.

Fourth, in reference to the petitioner’s claim that the
habitual life sentence he received exceeded the lawful jurisdiction
of the trial court (Ground Four), the magistrate judge found that
the claim is not exhausted and that there is no federal basis.
at 33.

Id.

While the petitioner raised a related claim, those claims

challenged a different conviction, ultimately concluding that
“. . . even if [the petitioner’s] first motion to stay had been
timely docketed as the motion to amend it was also intended to be,
it would not have salvaged this claim.”

Id.

Fifth, with respect to petitioner’s claim that his First,
Sixth, and Fourteenth Amendment rights were violated when trial

10

counsel

was

ineffective

(Ground

Five),

the

magistrate

judge

concluded that some claims were not exhausted, having never been
raised in any state court before (Grounds Five (a), (d), (e), (f),
(g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), and (r))
(ECF No. 69 at 33-37).

Further, other claims were found not to be

exhausted because petitioner either raised, and failed to appeal,
only a related claim in a state habeas petition with no federal
basis, or the petitioner’s claim is based on a different federal
ground with a different factual basis (Grounds Five (b), (c)). ECF
No. 69 at 33-34.

The magistrate judge then explained that the

Supreme Court has held that a federal habeas petition containing
both exhausted and unexhausted claims may be stayed, rather than
dismissed without prejudice, under limited circumstances.
69 at 39 (citing Rhines, 544 U.S. at 275, 277).

ECF No.

However, he notes,

“this procedure is only appropriate where an outright dismissal
could jeopardize the timeliness of a petitioner’s collateral attack
in federal court.
exhaust

claims

Thus, if a petitioner seeks a stay in order to

pleaded

in

the

original

petition,

then,

the

petitioner is required to allege facts showing (1) that ‘good
cause’ exists for his failure to exhaust the unexhausted claims;
and (2) that the unexhausted claims are ‘potentially meritorious’
on federal habeas corpus review.” ECF No. 69 at 39 (citing Rhines,
544 U.S. at 27-78).

11

Ultimately, the magistrate judge found that the petitioner is
not entitled to another stay and abeyance procedure. ECF No. 69 at
39-40.

Specifically, the petitioner has not presented all of his

unexhausted claims to the state court and the petitioner has not
shown good cause.

Id. at 40.

However, “because of the court’s

inadvertent error regarding the first motion to stay, in failing to
timely advise [p]etitioner of the status of all of his claims, and
in failing to also docket the motion to stay as a motion to amend
. . . [the magistrate judge] feels it would be fundamentally unfair
to deny [p]etitioner’s second motion to stay.”

Id.

After making the aforementioned recommendation, 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 14 days after being
served a copy of the report and recommendation.
Neither

party

filed

any

objections

to

ECF No. 69 at 42.
the

report

and

recommendation.
For the reasons set forth below, the report and recommendation
of

the

magistrate

judge

is

affirmed

and

adopted,

and

the

petitioner’s unopposed motion for stay and abeyance (ECF No. 58) is
granted.

This Court further directs that the petitioner shall be

provided such other relief as is set forth in the report and
recommendation, as contained under “IV. Conclusion” below.

12

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

Because no

objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).

28

As the Supreme Court of the United States

stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
III.

Discussion

After reviewing the parties’ filings and the record, this
Court is not “left with the definite and firm conviction that a
mistake has been committed” by the magistrate judge. United States
v. Gypsum Co., 333 U.S. at 395.

The magistrate judge correctly

held the pro se petition to less stringent standards than those
complaints drafted by attorneys.

See Haines v. Kerner, 404 U.S.

519, 520 (1972).
A petitioner has one year to file a federal habeas corpus
petition.

28 U.S.C. § 2244(d).

In particular, that one-year

limitation period runs from the latest of the following dates:
(1) when the petitioner’s judgment became final; (2) when the State

13

action that prevented the petitioner from filing his or her
petition was removed; (3) the date on which the Supreme Court of
the United States recognized a new constitutional right and makes
that

right

retroactively

applicable

on

collateral

review;

or

(4) “the date on which the factual predicate of the claim . . .
presented could have been discovered through the exercise of due
diligence.”

§ 2244(d)(1)(A-D).

The statue of limitations may be

tolled for “[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect
to

the

pertinent

§ 2244(d)(2).
post-conviction

judgment

or

claim

is

pending.”

28

U.S.C.

“[U]nder § 2244(d)(2) the entire period of state
proceedings,

from

initial

filing

to

final

disposition by the highest state court (whether decision on the
merits, denial of certiorari, or expiration of the period of time
to seek further appellate review), is tolled from the limitations
period for federal habeas corpus petitioners . . .” Taylor v. Lee,
186 F.3d 557, 561 (4th Cir. 1999). The limitations period does not
remain tolled during the 90-day writ of certiorari filing period
following denial of state post-conviction relief.

Harris v.

Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); Washington v. Beck,
2005 WL 1869229, at *1 (M.D. N.C. Aug. 3, 2005) (citing Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999)).

Here, the magistrate

judge correctly found that the petitioner’s first state habeas
petition tolled the one-year period of limitations and that the

14

statute of limitations remained tolled due to his second state
habeas petition.

ECF No. 69 at 24-25.

The magistrate judge also

correctly

that

lost

noted

54

days

were

from

his

one-year

limitations period and that by August 14, 2015, after 94 more days
had run, the petitioner filed the petition.

ECF No. 69 at 25.

The

clock began running again after adding a day, in accordance with
Federal Rule of Civil Procedure 6(a), and continued to run until it
expired on December 15, 2015.

Id.

Thus, the petition, filed on

August 14, 2015 (ECF No. 1), was timely.
Further, this Court agrees with the magistrate judge that the
petitioner has not exhausted state remedies.

ECF No. 69 at 28.

In

order to exhaust state remedies, a state prisoner “must give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established
appellate review process.”
845 (1999).

O’Sullivan v. Boerckel, 526 U.S. 838,

The magistrate judge correctly determined that the

petitioner’s claims were not exhausted and that the petitioner
failed to show good cause.

However, since it would be unfair to

deny him a second motion to stay, considering the court’s error
regarding the first motion to stay, in failing to advise petitioner
of the status of all his claims, and in failing to docket the
motion to stay as a motion to amend, the petitioner is granted a
second motion to stay.

15

Therefore,

this

Court

finds

that

the

magistrate judge are not clearly erroneous.

findings

of

the

Accordingly, the

report and recommendation is affirmed and adopted in its entirety.
IV.

Conclusion

For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 69) is AFFIRMED and ADOPTED.
Accordingly,

the

petitioner’s

unopposed

abeyance (ECF No. 58) is hereby GRANTED.

motion

for

stay

and

Further, it is ORDERED

that the May 2, 2016 motion to stay (ECF No. 42) be GRANTED in part
as to amending Grounds Two and Three to include federal bases that
the claims originally had when raised and exhausted them in state
court (but omitted when petitioner filed his federal petition), and
DENIED in part as futile as it pertains to the three new proposed
Grounds Five [sic] through Seven.

The petitioner is DIRECTED to

file (1) quarterly reports, beginning February 1, 2019, regarding
the status of his habeas and appeals on the unexhausted claims he
intends to pursue in his federal § 2254 petition; and (2) a notice
of exhaustion within thirty days from the date his state court
remedies have been fully exhausted.

Petitioner must move for

reinstatement of this action to the active docket of the Court
within thirty days from the date his state court remedies have been
exhausted. Failure to do so could result in dismissal of his
present petition.

16

Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail 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:

September 5, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

17