Ward v. Seifert

Filing 35

MEMORANDUM OPINION AND ORDER adopting and incorporating the 31 Proposed Findings and Recommendation by Magistrate Judge; further directing that this action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 9/30/2014. (cc: petitioner; counsel of record) (taq)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
WILLIAM R. WARD
Petitioner,
v.

CIVIL ACTION NO: 2:13-05312

EVELYN SEIFERT, Warden,
Northern Correctional Facility,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending are a petition for habeas corpus pursuant to
28 U.S.C. § 2254, filed March 15, 2013, and the respondent’s
motion for summary judgment, filed September 17, 2013.
This action was previously referred to Dwane L.
Tinsley, United States Magistrate Judge, who, on August 14,
2014, submitted his Proposed Findings and Recommendation
pursuant to the provisions of 28 U.S.C. ' 636(b)(1)(B).

The

magistrate judge recommends that the motion for summary judgment
be granted and the petition dismissed.

After having received an

extension of time, the petitioner timely filed his objections on
September 19, 2014.
Petitioner first asserts that his counsel was
ineffective for not objecting to the trial testimony of social

worker Lucy Earl pursuant to Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993).

This contention fails inasmuch as

petitioner has not demonstrated that the challenged portion of
Ms. Earl’s testimony involved scientific knowledge.

Watson v.

Inco Alloys Int'l, Inc., 209 W. Va. 234, 239, 545 S.E.2d 294,
299 (2001) (“The question of admissibility under Daubert v.
Merrell Dow Pharmaceuticals, Inc. . . . and Wilt v. Buracker . .
. only arises if it is first established that the testimony
deals with ‘scientific knowledge.’ ‘Scientific’ implies a
grounding in the methods and procedures of science while
‘knowledge’ connotes more than subjective belief or unsupported
speculation.”) (quoted authority omitted).
Petitioner next objects concerning the handling of
certain jurors or prospective jurors in the case.

First,

petitioner contends that his counsel was ineffective for failing
to move for a mistrial or a poll of the jury after one of their
number, Ms. Price, was excused by the court.

Ms. Price became

emotional at some point during trial and suggested that she
could not be fair and impartial based upon an unexplained event
that occurred involving her daughter.

Petitioner asserts the

display of emotion, or unknown discussions she may have had with
fellow jurors about it, could have improperly influenced them
and a poll should have occurred.

The assertion rests on pure

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speculation that does not approach the rigors of Strickland v.
Washington, 466 U.S. 668, 689 (1984).

Petitioner is simply

unable to demonstrate he was prejudiced by his lawyer’s failure
to poll the jury or seek a mistrial.
Second, he asserts that the circuit judge who presided
at his trial had represented one juror’s husband over 16 years
earlier while the judge was in private practice.

As the

magistrate judge noted, the juror was questioned about the
relationship and professed it would not affect her ability to
fairly judge the issues at trial.
Third, petitioner notes that during jury selection, as
the charges were being read in the initial instructions to the
pool, one prospective juror muttered under his breath that
petitioner was guilty.

The presiding judge questioned the

fellow prospective juror who reported the comment.

She

professed that she could nevertheless fairly and impartially
judge the case.

A similar inquiry was made of other prospective

jurors sitting near the commenting juror.

After the commenting

juror was questioned privately by the court, he was excused
inasmuch as he stated he could not fairly adjudicate the case.
The petitioner is unable to demonstrate that his
lawyer’s performance prejudiced him.

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In the situation involving

the former client of the presiding jurist, the judge’s
representation of the juror’s husband was far too remote to give
rise to reversible error under the circumstances.

In the first

and third situations involving outside influence, the judge
undertook an appropriate inquiry in both matters and excused the
two individuals.

Petitioner’s speculation aside, there is no

basis to find deficient representation over his lawyer’s failure
to demand polls.

The lawyer may have strategically determined

that panel-wide inquiries would cause more harm to his client’s
interest than good.

The jury-based objections all lack merit.

Petitioner next asserts that his lawyer rendered
ineffective assistance of counsel in not calling two alleged
alibi witnesses.

Beyond naming these individuals and stating

that they could account for his whereabouts on at least one of
the occasions that abuse of the victim was alleged, he does not
further develop the claim in his objections.

He also briefly

asserts that counsel should have called three other witnesses
who would have testified that they were once falsely accused of
abusing the victim.

The two-sentence assertion is likewise

woefully short on details.
Petitioner has consequently not demonstrated that his
lawyer’s decision-making on the witnesses to be called was
outside the “wide latitude” normally accorded counsel in making
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such determinations.

See United States v. Dyess, 730 F.3d 354,

364-65 (4th Cir. 2013) (citing Wilson v. Greene, 155 F.3d 396,
404 (4th Cir. 1998) (quoting Pruett v. Thompson, 996 F.2d 1560,
1571 n. 9 (4th Cir.1993)) (“Decisions about what types of
evidence to introduce ‘are ones of trial strategy, and attorneys
have great latitude on where they can focus the jury's attention
and what . . . evidence they can choose not to introduce.’”).
Petitioner next asserts that his lawyer was
ineffective for not raising the issue of his competence to stand
trial.

He notes that his lawyer failed to gather records from

his incarceration that would have shown he was suicidal and
under a psychiatrist’s care at one time.

As noted in the PF&R,

the judge who presided over the original trial and the habeas
proceedings observed that “‘the Petitioner always appeared
alert, responsive and well aware of his surroundings and the
important criminal proceedings.’”

(PF&R at 24 (quoted authority

omitted)).
As further noted by the magistrate judge, the
petitioner’s inability to make the most minimal of showings
regarding the nature of his alleged mental disease or defect
dooms his claim substantively, along with diminishing his
additional assertion that he was denied the opportunity to
develop the record in state court on the matter.
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He has,

accordingly, failed to demonstrate that his lawyer rendered
ineffective assistance that prejudiced his defense.

(See, e.g.,

PF&R at 24-25 (“He has not proffered any specific evidence that
he would have presented in an evidentiary hearing to support
these contentions, which would in any way support a finding that
the petitioner was tried while mentally incompetent.”)).
Accordingly, following a de novo review, and having
concluded that the entirety of the objections lack merit, it is
ORDERED that the PF&R be, and it hereby is, adopted and
incorporated herein.

It is further ORDERED that this action be,

and hereby is, dismissed and stricken from the docket.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and the
petitioner.
DATED:

September 30, 2014

John T. Copenhaver, Jr.
United States District Judge

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