Dodson v. Ballard

Filing 35

MEMORANDUM OPINION AND ORDER DECLINING TO ADOPT THE MAGISTRATE JUDGE'S 33 REPORT AND RECOMMENDATION, DENYING PETITIONER'S CROSS 29 MOTION FOR SUMMARY JUDGMENT, AND GRANTING RESPONDENT'S 20 MOTION FOR SUMMARY JUDGMENT.It is ORDERED that this civil action be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/29/18. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SHANE MONROE DODSON,
Petitioner,
v.

Civil Action No. 5:16CV150
(STAMP)

DAVID BALLARD, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
DECLINING TO ADOPT THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S CROSS MOTION FOR SUMMARY JUDGMENT,
AND GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
The petitioner, Shane Monroe Dodson (“Dodson”), acting

pro

se,1 filed a petition (ECF No. 1) under 28 U.S.C. § 2254 for writ
of habeas corpus by a person in state custody. Dodson is currently
incarcerated

in

Mount

Olive

Correctional

Complex,

serving

an

enhanced life sentence as a recidivist for his April 6, 2011
convictions of daytime burglary and domestic battery in the Circuit
Court of Jefferson County, West Virginia.
This civil action was referred to the United States Magistrate
Judge for initial review and report and recommendation pursuant to
Local Rule of Prisoner Litigation Procedure 2.

United States

Magistrate Judge James E. Seibert entered a report (ECF No. 33),
recommending that petitioner’s § 2254 petition and cross motion for

1

“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).

summary judgment (ECF No. 29) be granted, and that respondent’s
motion for summary judgment (ECF No. 20) be denied. The magistrate
judge further recommended that “the decision of the West Virginia
Supreme Court of Appeals (“WVSCA”) be reversed, and the case be
remanded to the Circuit Court of Jefferson County for entry of an
order that the plea offer in dispute is to be re-offered to
Petitioner.”

ECF No. 33 at 10.

The respondent filed timely objections (ECF No. 34) to the
report and recommendation.
I.

Background

The petitioner appealed his conviction to the Supreme Court of
Appeals

of

West

Virginia

(“WVSCA”)

alleging

prosecutorial

misconduct, that the trial court erred in not granting his request
for a new trial, and that the verdict was not supported by
evidence.

The WVSCA denied his appeal on February 11, 2013.

On

February 21, 2013, petitioner filed a petition for habeas corpus in
the Circuit Court of Jefferson County, West Virginia alleging
prosecutorial misconduct and ineffective assistance of counsel
leading up to his trial.

After holding an omnibus hearing, the

Jefferson County Circuit Court found that the petitioner had
received

ineffective

assistance

of

counsel

during

the

plea

bargaining phase of his trial and granted him habeas corpus relief.
Specifically, the Circuit Court determined that Dodson’s trial
counsel had erroneously advised Dodson of the law applicable to the

2

charges against him and that Dodson had relied on this erroneous
advice when he rejected a plea agreement offered by the State.

By

written order, the Circuit Court ordered the State to re-offer
Dodson the plea offer.

ECF No. 21-2.

The State appealed, and the

Supreme Court of Appeals of West Virginia (the “WVSCA”) ultimately
overturned

the

Circuit

Court’s

order.

The

WVSCA

held

that

petitioner “did not meet the requisite showing to prevail on his
Sixth Amendment claim of ineffective assistance of counsel.”
1-2 at 8.
Circuit

ECF

Accordingly, on April 7, 2016, the decision of the

Court

was

reversed,

and

the

case

was

remanded

with

instruction that an order denying petitioner habeas relief be
entered. Petitioner then filed the instant action on September 23,
2016, asking the Court to reverse the decision of the WVSCA.
Respondent filed a response to petitioner’s petition (ECF No.
19) as well as a motion for summary judgment with a memorandum in
support.

ECF Nos. 20, 22.

On May 24, 2017, Attorney Chris

Petersen filed a notice of appearance on behalf of petitioner. ECF
No. 25.

Petitioner then filed a response to respondent’s motion

for summary judgment (ECF No. 28) and a cross motion for summary
judgment

(ECF

No.

29).

Respondent

filed

both

a

reply

to

petitioner’s response to respondent’s motion for summary judgment
(ECF No. 30), as well as a response in opposition to petitioner’s
cross motion for summary judgment (ECF No. 31).

3

Petitioner then

filed a reply to respondent’s response to petitioner’s cross motion
for summary judgment.

ECF No. 32.

This civil action was referred to United States Magistrate
Judge James E. Seibert for a report and recommendation.
33.

ECF No.

The magistrate judge noted that “[t]he only of Petitioner’s

claims that was accepted by the Circuit Court was that Petitioner
received

ineffective

assistance

of

counsel

during

the

plea

negotiations stage of the underlying criminal case” and that “the
Circuit Court found that counsel was not ineffective during the
trial stage of the proceedings.”

The magistrate judge then noted

that “only the plea negotiations are relevant for our purposes.”
The magistrate judge reviewed the omnibus hearing proceedings
regarding the discussions between petitioner and his former counsel
as

to

the

portion

of

the

underlying

case

involving

plea

negotiations, the Circuit Court’s decision and order granting the
petitioner’s habeas petition and ordering the State to re-tender
the plea offer to the petitioner, and the WVSCA’s three-prong
standard of review on appeal.

Upon review, the magistrate judge

found that “[i]n the instant case, the WVSCA does not posit an
abuse of discretion with respect to the final order and ultimate
disposition, nor do they mention a clearly erroneous finding with
respect to the factual findings.”

ECF No. 33 at 8.

The magistrate

judge states, “[i]n reviewing the record, the Court does not see
evidence of either.

Thus, the WVSCA only takes issue with the

4

Circuit Court on [] its determination that Petitioner did in fact
receive

ineffective

assistance

from

his

counsel

in

the

plea

bargaining stage.” Id. The magistrate judge found that, under the
third prong, the WVSCA reviewed petitioner’s ultimate legal claim
of ineffective assistance of counsel, which they determined was a
question of law, de novo.

ECF No. 33 at 8.

The magistrate judge,

in reviewing the decision of the WVSCA and its application of the
Strickland test, noted that since the WVSCA found that the Circuit
Court erred in finding Mr. Lambert’s performance to be deficient
under an objective standard of reasonableness, they declined to
access the Circuit Court’s finding under the second prong of
Strickland. Upon review of the WVSCA’s conclusion that the Circuit
Court made no “explicit credibility assessments,” the magistrate
judge found that the Circuit Court did, in fact, make credibility
determinations as to the testimony of the petitioner and his former
counsel at the omnibus hearing. The magistrate judge adds that “it
is inarguable that the Circuit Court was in the best position to
make this determination” as the Circuit Court was “the same Court
[that] oversaw the underlying trial, and the habeas proceeding that
ensued.”

ECF No. 33 at 9.

The magistrate judge found that the

[Circuit Court’s] Order is a credibility determination in and of
itself.”

ECF No. 33 at 9.

The magistrate judge concluded by

stating:
Once the WVSCA’s reasoning that the Circuit Court failed
to make an express credibility determination is
5

dispelled, it becomes apparent that the Circuit Court was
well within its discretion to find that Mr. Lambert’s
performance in the plea bargaining portion of the
underlying case was deficient under an objective standard
of reasonableness.
INDEED, IF ONE TAKES PETITIONER’S
VERSION OF EVENTS TO BE ACCURATE, A FINDING OF
INEFFECTIVE ASSISTANCE OF COUNSEL IS THE ONLY CONCLUSION
TO BE MADE.
ECF No. 33 at 9 (emphasis in original).
Based on the foregoing, the magistrate judge recommended that
“Petitioner’s § 2254 petition and Cross Motion for Summary Judgment
(ECF No. 29) be GRANTED, and that Respondent’s Motion for Summary
Judgment (ECF No. 20) be DENIED. The Court further recommends that
the decision of the WVSCA be reversed, and the case be remanded to
the Circuit Court of Jefferson County for entry of an order that
the plea offer in dispute is to be re-offered to Petitioner.”

ECF

No. 33 at 10.
The magistrate judge stated, “[a]ny party may, within fourteen
[14] days of the filing of this recommendation, file with the Clerk
of Court written objections identifying those portions of the
recommendation to which objection is made and the basis for such
objections.

A copy of any objections shall also be submitted to

the United States District Judge of record. Failure to timely file
objections to this recommendation will result in waiver of the
right to appeal from a judgment of this Court based upon such
recommendation.”

Id.

Respondent filed objections to the magistrate judge’s report
and recommendation (ECF No. 33) and states that “this Court should
6

reject the R&R for any of three reasons.”

ECF No. 34 at 1.

First,

respondent argues that, “the analysis in the R&R intrudes upon a
question of state law—namely, the standard of review and level of
deference the Supreme Court of Appeals of West Virginia (“WVSCA”)
applies to factual findings made (or not made) by a state circuit
court—that falls outside the scope of post-conviction collateral
review prescribed in 28 U.S.C. § 2254.”
argues

that,

“the

WVSCA’s

factual

Id.

Second, respondent

determinations

were

not

unreasonable in light of the record and, therefore, the R&R’s
conflicting factual determinations violate 28 U.S.C. § 2254(d)(2).”
Finally,

Id.

respondent

argues

that,

“the

R&R’s

ultimate

recommendation that this Court reverse the WVSCA should be rejected
because it is evident that the WVSCA reasonably applied the facts
to the relevant, applicable law.”

Id.

Respondent asserts that

while the report and recommendation “disagrees” with the WVSCA’s
determination that there were no such credibility determinations
made by the Circuit Court, and thus, did not grant deference to the
Circuit Court’s findings of fact, “the question of the extent to
which, if at all, the WVSCA applies deference to the credibility
findings of the inferior West Virginia state courts is inherently
a question of state law.”

ECF No. 34 at 3.

Respondent argues that

the magistrate judge’s “finding violates the scope of habeas review
as

it

is

evident

that

this

issue

involves

the

WVSCA’s

interpretation of its own state case law, and, on questions of such

7

law, the WVSCA is the ultimate authority.”

Id.

Thus, respondent

asserts, “the R&R may ‘disagree’ with how the WVSCA applied West
Virginia law, but it is erroneous to recommend reversal of such a
decision.”

ECF No. 34 at 4.

Respondent also asserts “[t]he point

discussed above is sufficient, standing alone, for this Court to
reject the R&R as it would have this Court pass beyond the scope of
§ 2254 review and delve into questions of state law.

However (and

arguing purely in the alternative) even if this Court were to
conclude

the

R&R’s

analysis

does

not

unlawfully

(and

unconstitutionally) intrude upon a question of state law, the
WVSCA’s

factual

determinations

were

not

unreasonable

and,

therefore, relief under 28 U.S.C. § 2254(d)(2) is inappropriate,
and

the

portion

of

the

R&R

rejecting

the

WVSCA’s

determinations should not be adopted by this Court.”
at 1.

factual

ECF No. 34

Specifically, respondent asserts that the WVSCA’s factual

findings are entitled to a presumption of correctness which the R&R
does

not

recognize,

the

report

and

recommendation

improperly

considers the findings of the state circuit court in concluding
that the WVSCA’s credibility determinations were unreasonable, and
that the WVSCA’s credibility determinations are supported by the
record.

Lastly,

respondent

argues

that

the

report

and

recommendation’s ultimate recommendation—that this Court should
reverse the WVSCA—should be rejected because it is evident that the
WVSCA reasonably applied the facts to the relevant, applicable

8

federal law.

ECF No. 34 at 11.

Respondent concludes by stating

“[t]he WVSCA’s adjudication of Petitioner’s ineffective assistance
of counsel claim was neither an unreasonable application of federal
law nor a decision based on an unreasonable determination of the
facts.”

ECF No. 34 at 12.

Respondent argues that this Court

should reject the report and recommendation, deny petitioner’s
cross motion for summary judgment, and grant respondent’s motion
for summary judgment. In the alternative, this Court should reject
the report and recommendation and remand this case back to the
magistrate judge for entry of additional recommendations.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.

Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

objections were not filed, those findings and recommendations will
be upheld unless they are “clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
III.

Discussion

Factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary, § 2254(e)(1),
and a decision adjudicated on the merits in a state court and based

9

on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the evidence
presented in the state-court proceeding, § 2254(d)(2).

Miller-El

v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003)
(citing Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000)).
Moreover, a federal habeas court should not “casually cast
aside” a “state court’s findings of fact.”

Sharpe v. Bell, 593

F.3d 372, 379 (4th Cir. 2010) (citing Miller v. Fenton, 474 U.S.
104, 112, 106 S. Ct. 445, 450 (1985) (“[F]ederal habeas court,
should, of course, give great weight to the considered conclusions
of a coequal state judiciary.”)).
Section

2254

commands

a

federal

court

to

“presume”

the

correctness of state court factual findings and only overturn a
state court’s credibility finding when the state court’s error is
“stark and clear.”

Cagle v. Branker, 520 F.3d 320, 324-25 (4th

Cir. 2008) (quoting Lonberger, 459 U.S. at 434, 103 S. Ct. 843);
see also Sharpe v. Bell, 593 F.3d 372, 378–79 (4th Cir. 2010).
federal

court

may

not

characterize

these

state-court

A

factual

determinations as unreasonable “merely because [it] would have
reached a different conclusion in the first instance.”
Allen, 558 U.S. 290, 301, 130 S. Ct. 841 (2010).

Wood v.
Instead,

§ 2254(d)(2) requires that this Court accord the state trial court
substantial deference.
(2015).

Brumfield v. Cain, 135 S. Ct. 2269, 2277

If reasonable minds reviewing the record might disagree

10

about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination.

Rice v.

Collins, 546 U.S. 333, 341–342, 126 S. Ct. 969 (2006).
The Fourth Circuit has repeatedly emphasized the deferential
standard

of

review

of

a

state

court’s

credibility

findings.

Merzbacher v. Shearin, 706 F.3d 356, 364 (4th Cir. 2013).

It is

clear that “[c]redibility determinations, such as those the state
.

.

.

court

determinations.”

made

regarding

[a

witness],

are

factual

Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir.

2003).
A federal habeas court reviewing the decision of a state
habeas court must interpret the “last reasoned decision” from the
state court.

LeBlanc v. Mathena, 841 F.3d 256, 263-64 (4th Cir.

2016) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)) (“In
assessing a state prisoner’s habeas claims, we review the ‘last
reasoned’ state court decision.”), cert. granted, judgment rev’d on
other grounds sub nom.
(2017).

Virginia v. LeBlanc, 137 S. Ct. 1726,

“Unless a state-court opinion adopts or incorporates the

reasoning of a prior opinion, AEDPA generally requires federal
courts to review one state decision.” Woolley v. Rednour, 702 F.3d
411, 421 (7th Cir. 2012) (internal quotation omitted).
“[i]f

the

last

reasoned

decision

adopts

or

However,

substantially

incorporates the reasoning from a previous state court decision,
[the Court] may consider both decisions to fully ascertain the

11

reasoning of the last decision.”

LeBlanc, 841 F.3d at 264 (citing

Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007)).

A

federal court “[does] not review the state courts’ last reasoned
decision to ensure that it is consistent with the findings of the
lower state courts; rather, [the court reviews] the last reasoned
decision to determine whether it reasonably determined the facts in
light of the evidence presented in the State court proceeding.”
Williams v. Johnson, 840 F.3d 1006, 1011 (9th Cir. 2016), cert.
denied sub nom.

Williams v. Adams, 137 S. Ct. 1344 (2017)

(internal quotations omitted); see also Washington v. Sobina, 509
F.3d 613, 620 (3d Cir. 2007) (“[I]n the event of a conflict between
the fact findings of the state trial court and the state appellate
court, deference should be given to the version reached by the
higher court.” (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.
1996)).
At the heart of this matter was the conflicting testimony
between Dodson and Mr. Lambert regarding Dodson’s allegations that
Mr. Lambert gave him erroneous advice during plea bargaining, which
were strongly opposed by Mr. Lambert. In order to prevail on his
petition, Dodson must show that the WVSCA’s adjudication of his
case was either “an unreasonable determination of the facts in
light of the evidence presented” or “contrary to, or involved an
unreasonable application of, clearly established Federal law, as

12

determined by the Supreme Court of the United States.” See 28
U.S.C. § 2254(d).
In its memorandum decision, the WVSCA looked to whether the
circuit

court

made

credibility

determinations

during

the

evidentiary proceedings, and found that “the habeas court made no
explicit credibility assessments.” Plumley v. Dodson, No. 14-1202,
2016 WL 1412247, at *3 (W. Va. Apr. 7, 2016). The WVSCA noted that,
“[h]ad the judge made credibility determinations, this Court would
have afforded him great deference because he had the opportunity to
view the witnesses.”

Id. (citing Bartles v. Hinkle, 196 W. Va.

381, 389, 472 S.E.2d 827, 835 (1996). The WVSCA, finding no
explicit credibility determinations had been made, and pursuant to
well-settled case law, did not grant deference to the circuit
court.
This

Court

finds

that

the

WVSCA’s

critical

factual

determination that the circuit court “made no explicit credibility
assessments” is not unreasonable.

It is apparent that the circuit

court did not make explicit credibility determinations in its order
granting petition for habeas corpus relief (ECF No. 21-2) as to the
witnesses that testified at the omnibus hearing. Petitioner submits
that

“the

findings

of

the

Circuit

Court

were

credibility

determinations, even if they were not expressly labeled as such.”
ECF No. 29 at 11.

The WVSCA clearly disagreed.

13

Petitioner argues it is “inherently unreasonable for the
WVSCA to refuse to recognize, and even deny the existence of, the
Circuit Court’s clear, and supported, credibility determinations,
and instead substitute those determinations with its own.” ECF No.
29 at 12. This Court finds this argument is overstated. The WVSCA’s
memorandum decision acknowledged that “the habeas court judge was
Mr. Dodson’s trial court judge,” but ultimately found that no
explicit credibility determinations were made. The WVSCA’s decision
certainly refutes petitioner’s assertion that the circuit court
made “clear, and supported, credibility determinations.” The WVSCA,
accordingly,

then

proceeded

in

its

decision

to

analyze

the

contentions of the parties and makes its own factual determinations
as to credibility of the witnesses, which it explained in detail
with reference to the record. Following these findings, which were
explained in detail, the WVSCA reached a conclusion as to the issue
of witness credibility.2
It is clear that the WVSCA’s memorandum decision is the last
reasoned decision in the instant matter, and it certainly did not

2

The WVSCA found that “[t]he testimony of Mr. Dodson and his
mother at the habeas hearing are insufficiently corroborated by
independent, objective evidence.
The declarations of counsel,
however, and the reasonable inferences drawn from Mr. Dodson’s past
behavior, establish that Mr. Dodson’s decision to reject the plea
offer was motivated primarily by a persistent, strong, and informed
hope for exoneration at trial.” Plumley v. Dodson, No. 14-1202,
2016 WL 1412247, at *6 (W. Va. Apr. 7, 2016).
14

adopt or incorporate part of the circuit court’s opinion. In fact,
the WVSCA’s decision did the opposite.
This Court finds that the WVSCA’s credibility findings are
findings of fact are entitled to deference as explained by the case
See Merzbacher, 706 F.3d at 364.

law above.

Further, this Court

finds that the WVSCA’s opinion is the last reasoned decision and
thus, the circuit court’s opinion must be disregarded.
841 F.3d at 263-64.
report

and

LeBlanc,

This Court finds that the magistrate judge’s

recommendation

falls

outside

the

scope

of

post-conviction collateral review prescribed in 28 U.S.C. § 2254 as
it was to consider the WVSCA’s memorandum decision as the last
reasoned decision and afford deference to the factual credibility
findings contained therein, not review the WVSCA’s decision to
ensure that it is consistent with the findings of the lower circuit
court.

Williams, 840 F.3d at 1011.

This Court finds no clear and convincing evidence contrary to
the WVSCA’s decision, and finds no stark or clear error by the
Cagle, 520 F.3d at 324-25.

WVSCA in consideration of the record.
Having

determined

the

circuit

court

judge

made

no

explicit

credibility determinations, the WVSCA was tasked with making its
own findings as to credibility. These findings are clearly findings
of

fact,

and

this

Court

finds

that

the

WVSCA’s

determinations were reasonable in light of the record.
537 U.S. at 340.

factual

Miller-El,

Even if this Court were to disagree with the

15

factual findings of the WVSCA as to the issue of petitioner’s
credibility, as explained above, that would still not be enough.
Wood, 558 U.S. at 301. If reasonable minds reviewing the record
might disagree about the finding in question, on habeas review that
does not suffice to supersede the WVSCA’s determination. Rice, 546
U.S. at 341–342.
Thus, this Court declines to adopt and affirm the report and
recommendation

of

the

magistrate

judge

and

finds

that

the

petitioner’s motion for summary judgment must be denied. The
magistrate judge’s ultimate recommendation that this Court reverse
the WVSCA should be rejected because it is evident that the WVSCA’s
factual determinations were not unreasonable in light of the record
and that the WVSCA reasonably applied the facts to the relevant,
applicable law.
IV.

Conclusion

For the reasons set forth above, this Court declines to adopt
the magistrate judge’s report and recommendation (ECF No. 33).
This Court finds that the WVSCA’s adjudication of petitioner’s
ineffective assistance of counsel claim was neither an unreasonable
application of federal law nor a decision based on an unreasonable
determination of the facts, and upholds its decision. Accordingly,
petitioner’s cross motion for summary judgment (ECF No. 29) is
DENIED and respondent’s motion for summary judgment (ECF No. 20) is
GRANTED.

16

It is ORDERED that this civil action be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
If the petitioner wishes to appeal the judgment of this Court
to the United States Court of Appeals for the Fourth Circuit, he is
ADVISED that he must file a notice of appeal with the Clerk of this
Court within sixty days after the date of the entry of this
judgment order.
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:

March 29, 2018

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

17