Roberts v. Ballard
Filing
34
MEMORANDUM OPINION AND ORDER: The Court overrules Plaintiff's Objections and adopts the 27 PROPOSED FINDINGS AND RECOMMENDATION of Magistrate Judge Dwane L. Tinsley as follows: Defendant's 12 MOTION for Summary Judgment is GRANTED; Plai ntiff's 1 Section 2254 Petition is DENIED and this matter is DISMISSED from the Court's docket. The Court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/30/2014. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
BENNY RAY ROBERTS,
Plaintiff,
v.
CIVIL ACTION NO. 1:13-23245
DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings of fact and recommendations regarding disposition
pursuant to 28 U.S.C. § 636(b)(1)(B).
Whereupon, Magistrate Judge
Tinsley submitted his Findings and Recommendation (“PF&R”) to the
court on August 22, 2014, in which he recommended that this court
grant defendant’s motion for summary judgment, deny plaintiff’s
Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, and
dismiss this matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days plus three mailing days in
which to file any objections to Magistrate Judge Tinsley’s
Findings and Recommendations.
By Order entered on September 4,
2014, the court granted plaintiff’s motion for an extension of
time to file his objections.
On September 17, 2014, plaintiff
filed timely objections to the magistrate judge's Findings and
Recommendation.
With regard to plaintiff’s objections, this court
has conducted a de novo review of the record.
Under 28 U.S.C. § 2254, Roberts is entitled to federal
habeas relief only if he “is in custody in violation of the
Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Section 2254(d) provides that when the issues
raised in a § 2254 petition were raised and considered on the
merits in State court habeas proceedings, federal habeas relief
is unavailable unless the State court’s decision:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme
Court stated that under the “contrary to” clause in § 2254(d)(1),
a federal habeas Court may grant habeas relief “if the State
court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the State court decides a case
differently than this Court has on a set of materially
indistinguishable facts.”
Williams, 529 U.S. 362, 412-13 (2000).
A federal habeas court may grant relief under the “unreasonable
application” clause of § 2254(d)(1) where the State court
identified the appropriate Supreme Court precedent but
unreasonably applied the governing principles.
Id.
In
determining whether the State court’s decision was contrary to,
or was an unreasonable application of, Supreme Court precedent,
2
all factual determinations by the State court are entitled to a
presumption of correctness.
See 28 U.S.C. § 2254(e).
A state court's decision is “contrary to” clearly
established federal law when it “applies a rule that contradicts
the governing law set forth” by the United States Supreme Court,
or “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that]
precedent.”
Williams, 529 U.S. at 405-06.
A state court's
decision involves an “unreasonable application” of clearly
established federal law under § 2254(d)(1) “if the state court
identifies the correct governing legal rule from . . . [the]
Court's cases but unreasonably applies it to the facts of the
particular state prisoner's case.”
Id. at 407.
“The state
court's application of clearly established federal law must be
‘objectively unreasonable,’ and ‘a federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly.’”
Robinson v. Polk, 438 F.3d 350, 355 (4th Cir.
2006) (quoting Williams, 529 U.S. at 411).
Moreover, when
“assessing the reasonableness of the state court's application of
federal law, the federal courts are to review the result that the
state court reached, not whether [its decision] [was] well
3
reasoned.”
Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir. 2003)
(quotation marks omitted).
Against this backdrop, the court has carefully considered
plaintiff’s objections and reviewed the record de novo.
The
court concludes that all of Roberts’ objections to the PF&R are
without merit.
Given that Roberts’ objections mirror his
arguments considered and rejected by the magistrate judge, it
would serve no useful purpose for the court to address each of
Roberts’ objections and go through the exercise of reiterating
the findings of fact and conclusions which are already set forth
in Magistrate Judge Tinsley’s comprehensive and well-reasoned
PF&R.
Accordingly, the court OVERRULES Roberts’ objections for
the same reasons stated in the PF&R.
The court will, however,
separately address a few points raised in plaintiff’s objections.
A.
Sufficiency of the evidence to prove felony murder
As the Supreme Court has said, “evidence is sufficient to
support a conviction whenever, `after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.’”
Parker v. Matthews, 132 S. Ct. 2148, 2153
(2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original).
Under this “deferential federal
standard,” a federal habeas court should not “unduly impinge[] on
the jury's role as factfinder.”
Coleman v. Johnson, 132 S. Ct.
2060, 2064 (2012).
4
Jackson leaves juries broad discretion in
deciding what inferences to draw from the
evidence presented at trial, requiring only that
jurors draw reasonable inferences from basic
facts to ultimate facts. This deferential
standard does not permit the type of fine-grained
factual parsing in which the Court of Appeals
engaged.
* * *
The jury in this case was convinced, and
the only question under Jackson is whether that
finding was so insupportable as to fall below the
threshold of bare rationality. The state court
of last review did not think so, and that
determination in turn is entitled to considerable
deference under AEDPA.
Id. at 2064-65.
On October 10, 2008, a jury found Roberts guilty of
felony murder in connection with the death of Losey Lee Bennett.
Roberts contends that he was improperly convicted of felony
murder because the victim’s death was not due to any act on his
part but, rather, resulted from the victim being removed from
life support some days later.
Therefore, the petitioner asserts
that the victim did not die during the commission of either a
robbery or a breaking and entering.
In West Virginia, the elements to sustain a conviction
for felony murder are:
“ (1) the commission of, or attempt to
commit, one or more of the enumerated felonies; (2) the
defendant’s participation in such commission or attempt; and (3)
the death of the victim as a result of injuries received during
the course of such commission or attempt.”
5
State v. Williams,
305 S.E.2d 251, 267 (W. Va. 1983)(emphasis added).
In State v.
Jenkins, the Supreme Court of Appeals of West Virginia upheld a
conviction of felony murder where the victim was removed from
life support.
229 W. Va. 415 (2012), The Jenkins Court held that
“it is sufficient if the initial wound caused the death
indirectly through a chain of natural causes.”
Id. at 262; see
also State v. Durham, 195 S.E.2d 144, 149 (W. Va. 1973) (“It is
sufficient if the initial wound caused the death through a chain
of natural causes.”).
At the trial, Dr. Zia Sabet, a Deputy Chief Medical
Examiner with the State of West Virginia, testified about the
victim’s cause of death.
See Exhibit 20 at 505-16.
According to
her:
Q:
What was the mechanism, what caused the
death?
A:
What was the mechanism of death?
If you have bleeding. . . bleeding alone,
even
without
fractures,
sometimes
with
shaking baby we have movement of the head
without any fracture but you have subdural
subarachnoid
hemorrhage,
because
if
you
have enough blood it pushes the brain, the
brain there’s no place for the brain to try
to compound say, or try to escape from this
pressure so it pushes the base of the brain
and causes herniation.
6
Brain tissue goes
to the host when the lower part or base of
the
skull.
herniation.
Q:
That’s
called
a
brain
And that is the cause of this.
That is the mechanism of death.
Do you
have an opinion as to the cause of death,
uh, as listed in your report?
A:
Multiple blunt force injuries. Because as I
mentioned we have four impact[s] to the
head
with
fractures,
subdural hemorrhage.
subarachnoid
and
And these are cause
of permeation of the base of the brain.
As
you know the respiration and heart beat
centers
on
the
medulla,
if
pressure on that area it stops.
you
have
So we have
enough pressure on that area that caused
death.
Q:
In your opinion, was the manner of death a
homicide?
A:
Yes.
When you have that much injury, the
cause of death is homicide.
Id. at 514-15.
Furthermore, numerous courts have concluded that
removal of a victim from life support is not an intervening cause
of death sufficient to relieve one from criminal liability.
See,
e.g., Anderson v. Ignacio, No. 3:98-cv-00655-ECR-VPC, 2011 WL
294388, *4-5 (D. Nev. Jan. 26, 2011) (holding that victim’s
7
removal from life support did not relieve defendant of criminal
responsibility); Ray v. Commonwealth of Kentucky, No. 2005-SC0241-MR, 2006 WL 2708537, *1 (Ky. Sept. 21, 2006) (“As it has
been held by almost all, if not all, other jurisdictions that
have been presented with this questions, the lawful decision to
withdraw artificial life support from a loved one is simply not
an independent, intervening cause of death sufficient to relieve
one of causal liability. . . .”); State v. Pelham, 176 N.J. 448,
824 A.2d 1082, 1090-91 (N.J. 2003) (holding that removal of life
support is not an independent, intervening cause of death and
citing to numerous jurisdictions that have held similarly);
Carrigg v. State, 696 N.E.2d 392, 396 (Ind. App. 1998) (“In order
for an intervening cause to break the chain of criminal
responsibility, the intervening cause must be so extraordinary
that it would be unfair to hold the defendant responsible for the
actual result.”); State v. Yates, 64 Wash. App. 345, 824 P.2d
519, 523 (Wash. App. 1992) (“When life support is removed, the
cause of death is not the removal, but whatever agency generated
the need for the life support in the first instance.”).
The court finds that a reasonable trier of fact could
have found beyond a reasonable doubt that the victim’s death
resulted from the initial injuries he received from the beating
on September 19, 2007, and under Jenkins and Durham, it is enough
if the initial wound caused the death indirectly through a chain
of natural causes.
8
As to Roberts’ claim that there was insufficient evidence
to support his conviction for felony murder because the State did
not establish each of the elements of the underlying felony, that
argument also fails.
Magistrate Judge Tinsley noted:
The evidence presented at trial was sufficient to
establish that the petitioner was involved in the
taking of property, money or a thing of value
from Losey Lee Bennett by striking or beating him
with the intent to deprive him of it permanently.
Even if the petitioner was not the person who
struck Bennett, based upon the evidence as a
whole, he may still be found guilty of robbery as
an aider and abettor or an accessory - a
principal in the second degree - and the jury was
properly instructed on those roles. (ECF No. 12,
Ex. 19 at 962-963).
As noted by the state habeas court, "the
instruction for robbery was properly given
because the evidence at trial included testimony
that Losey Lee Bennett had been hit in the head
with a board and was beaten prior to his wallet
being taken." (ECF No. 12, Ex. 11 at 43). In
the light most favorable to the State, a rational
trier of fact could have found the essential
elements of first degree robbery beyond a
reasonable doubt based upon those facts.
Furthermore, because Bennett died as a result of
injuries he sustained in the course of this
altercation, the evidence also supported the
jury's finding of guilt on the charge of felony
murder.
PF&R at 43.
Magistrate Judge Tinsley also concluded that there
was sufficient evidence to support Roberts’ conviction for felony
murder based on an underlying felony of breaking and entering and
attempted breaking and entering.
See PF&R at 55.
The state court determined that the prosecution met its
burden to produce evidence sufficient for “any rational trier of
9
fact” to find “the essential elements of the crime beyond a
reasonable doubt.”
Jackson, 443 U.S. at 319.
Viewed in the
light most favorable to the prosecution, the evidence showed
Roberts was involved in the taking of property, money or a thing
of value from Losey Lee Bennett by striking or beating him with
the intent to deprive him of it permanently.
Even if the
plaintiff was not the person who struck Bennett, based upon the
evidence as a whole, he may still be found guilty of robbery as
an aider and abettor or an accessory - a principal in the second
degree - and the jury was properly instructed on those roles.
To the extent the evidence conflicted, a reviewing court
on habeas “faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.”
McDaniel v. Brown, 558 U.S. 120, 133,
(2010) (quoting Jackson, 443 U.S. at 326).
The state court's
ruling that sufficient evidence supported Roberts’ conviction for
aiding and abetting felony murder was not contrary to, or an
unreasonable application of, clearly established Supreme Court
law.
B. Denial of Motion to Change Venue
Plaintiff next objects to Magistrate Judge Tinsley’s
finding that the state court’s denial of his motion for a change
of venue did not entitle him to habeas relief.
10
“A change of venue
is required as a matter of constitutional law only when the jury
pool is tainted `by so huge a wave of public passion’ that the
impaneling of an impartial jury is impossible.”
Mu’min v. Pruett,
125 F.3d 192, 199 (4th Cir. 1997) (citing Irvin v. Dowd, 366 U.S.
717, 728 (1961)), cert. denied, 522 U.S. 978 (1997).
“Matters of
change of venue are committed to the sound discretion of the trial
court . . . .”
Tuggle v. Thompson, 57 F.3d 1356, 1364 (4th Cir.
1995), vacated and remanded on other grounds, 516 U.S. 10 (1995).
Plaintiff filed a motion for a change of venue in the
underlying criminal case, citing “prejudice in the community” and
Roberts’ low probability of receiving a fair trial in Mercer
County.
Ex. 17 at 172-75.
held on the motion.
On September 25, 2008, a hearing was
See id. at 149-81; Exhibit 12.
In support of
his motion, defendant offered an opinion survey of potential
jurors compiled by Don Richardson and Associates.
at 13.
See Exhibit 12
Mr. Richardson also testified at the motions hearing.
See
id.; Exhibit 17 at 148-81.
In its Order denying the motion for change of venue, the
trial court noted:
In support of his motion for change of
venue, the defendant presented the testimony and
written report of Don R. Richardson. The Court
will not go into the background of this witness
but the Court does recognize him as an expert in
the area of opinion research. Mr. Richardson
testified that he completed a telephone survey of
Mercer County residents on September 3, 2008.
This survey consisted of randomly telephoning 207
“potential” jurors in Mercer County and asking
these people questions about the media reports of
this case and about the defendant.1
1
Mr. Richardson himself testified that he had no opinion
on whether the media coverage in the case was prejudicial.
11
When given a description of the media
accounts of the case, of the 207 people
contacted, 61%, or 127 people, had heard about
the case. Only 48 people had formed an opinion
in the matter, 22 of which held negative opinions
of the defendant. In other words, of the total
number of people contacted, only 23% had formed
an opinion. Less than 11% of the people
contacted had formed a negative opinion of the
defendant.
Of the 207 people contacted, 109 or 53%
felt that the defendant could receive a fair
trial in Mercer County. 31 people, 15% of the
total contacted, opined that the defendant could
not receive a fair trial. The remaining 67
people contacted, or 32%, did not know express
[sic] an opinion of a fair trial.
* * *
Based upon the report of Mr. Richardson,
this Court cannot find that such a hostile
sentiment exists against the defendant. The
Court notes that a majority of those interviewed
had heard about the case.
* * *
In this survey, of those who had some
prior knowledge, the overwhelming portion had not
formed any opinion about the case. With those
forming an opinion, less held a negative opinion
of the defendant than those who did not.
Exhibit 9 at 13-15.
The court notes that the trial court conducted an
extensive voir dire of the jury panel as to pre-existing
prejudice, bias and the ability to give the defendant a fair and
Q:
Does your survey. . . in your survey do
you have any opinion as to whether local
news, tv news, or the newspapers had
skewed or was [sic] unfair in their
coverage of this matter?
A:
I have no opinion on that whatsoever.
Exhibit 17 at 170.
12
impartial trial according to the evidence.
93.
See Exhibit 19 at 1-
Of the venire, only seven people, prospective jurors 6, 14,
17, 21, 25, 26, and 35, indicated that they had prior knowledge of
the case.
See id. at Exhibit 19 at 43.
Defense counsel was
permitted to personally question prospective jurors who indicated
that they had previously heard about the case.
See id. at 52-77.
Potential jurors who stated they were positive that they could not
be fair and impartial were discharged.
See id.
All of the jurors
ultimately chosen stated that they could put aside any information
they had been exposed to in the past and decide the case on the
law and evidence alone.
See id.
As to plaintiff’s specific objections concerning jurors
Carol Root and Charlotte Ann Russ, those are also without merit.
Ms. Root, a former probation officer who indicated that she knew
the prosecuting attorney in his official capacity some seventeen
years earlier, unequivocally stated that her former professional
relationship with the prosecuting attorney would in no way affect
her ability to give defendant a fair trial.
See id. at 32-33.
Q:
Would that cause you to give my arguments any more
weight or less weight?
A:
No.
Q:
Witnesses that I put on any more or less weight?
A:
No.
Q:
Could you be fair?
A:
Yes.
Id. at 33.
Likewise, Ms. Russ, who indicated that she had watched
television reports on the underlying crime and read about it in
13
the newspaper, swore under oath that she would be able to put this
out of her mind.
Q:
Ms. Russ, it’s my understanding, uh,
ask [sic] if you knew anything about
given all the questions that I asked
you said you do know something about
that correct?
that
this
here
this
when we
case
today,
case, is
A:
Yes.
Q:
Can you tell us what you do know about this case.
[sic].
A:
The only thing I know is that I saw it reported on
the television news on WVVA and I also read about
it in Bluefield Daily Telegraph.
Q:
Would have [sic] that additional information leave
any bias in your mind where you could not sit with
an open mind and render a fair and honest verdict
in this case?
A:
No, sir.
* * *
Q:
Alright. Ms. Russ, despite what you’ve seen on TV
or heard, read in the paper, do you understand
that the evidence that you have to base your
verdict on has to come here in the trial. [sic].
A:
Exactly.
Q:
So can you disregard what you read or what you’ve
heard and base your evidence solely, er, base your
verdict, excuse me, on the evidence that you hear
in this courtroom?
A:
Yes. And the only thing that I can tell you is
that I read about the crime and saw the picture of
the person that was arrested. I didn’t read any
details.
Ex. 19 at 57-59.
There is no requirement that qualified jurors be totally
ignorant of the facts and issues involved in a case.
v. Florida, 421 U.S. 794, 799-80 (1975).
noted:
14
See Murphy
As the Supreme Court has
To hold that the mere existence of any
preconceived notion as to the guilt or innocence
of an accused, without more, is sufficient to
rebut the presumption of a prospective juror’s
impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay
aside his impression or opinion and render a
verdict based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 723 (1961).
Furthermore, there is a
presumption of impartiality afforded to jurors.
Poynter v.
Ratcliff, 874 F.2d 219, 221 (4th Cir. 1989); Wells v. Murray, 831
F.2d 468, 472 (4th Cir. 1987).
It is clear that the trial court gave a great deal of
thought and consideration to plaintiff’s motion to change venue.
It is equally clear that during the voir dire process the court
took great pains to insure that an impartial jury was chosen.
Roberts has presented no convincing evidence that the trial judge
abused his discretion in not changing the venue.
Given the
considerable deference afforded a trial court’s determination of
jury impartiality, see Patton v. Yount, 467 U.S. 1025, 1031
(1984), the court can find no error in denial of the motion to
change venue.
Therefore, plaintiff’s objection is OVERRULED.
Magistrate Judge Tinsley's findings are thorough,
well-reasoned and set forth in detail in his 70–page PF&R.
For
the reasons expressed both herein and in the PF&R, the Court
overrules plaintiff’s objections and adopts the findings of
Magistrate Judge Tinsley in their entirety as follows:
(1)
Defendant’s motion for summary judgment is
GRANTED;
(2)
Plaintiff’s petition for a writ of habeas corpus
is DENIED; and
15
(3)
This matter is DISMISSED from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is further directed to send copies of this
Memorandum Opinion and Order to counsel of record and to
plaintiff, pro se.
IT IS SO ORDERED this 30th day of September, 2014
ENTER:
David A. Faber
Senior United States District Judge
16
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