Harper v. Ballard
Filing
50
MEMORANDUM OPINION AND ORDER adopting the 42 Proposed Findings and Recommendations by Magistrate Judge, granting respondent's 31 MOTION for Summary Judgment, denying petitioner's 34 MOTION to Deny Respondent's Motion to Dismiss Pursuant to Rule 12(b)(6), F.R. Civ. P. re: 31 MOTION by David Ballard for Summary Judgment, and dismissing the 2 PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge John T. Copenhaver, Jr. on 3/27/2015. (cc: counsel of record; any unrepresented parties; magistrate judge; petitioner) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER LEE HARPER,
Petitioner
v.
CIVIL ACTION NO. 2:13-7421
DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Respondent
MEMORANDUM OPINION AND ORDER
Pending is an amended petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, filed March 10, 2014, the
respondent’s motion for summary judgment, including the
incorporated motion to dismiss as to certain grounds, filed June
16, 2014, and petitioner’s Motion to Deny Respondent’s Motion to
Dismiss pursuant to Rule 12(b)(6), filed June 20, 2014.
This action was previously referred to Dwane L.
Tinsley, United States Magistrate Judge, who, on February 19,
2015, submitted his Proposed Findings and Recommendation
(“PF&R”) pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).
The magistrate judge recommends that the petition be dismissed.
On March 10, 2015, the court granted petitioner’s
motion to extend the time within which he could object to the
PF&R, with objections due March 17, 2015.
On March 13, 2015,
the court granted petitioner’s motion to extend the page
limitation for his objections.
The court granted a 10-page
extension despite the fact petitioner’s motion did not request
any particular number of additional pages.
On March 17, 2015,
the court received petitioner's objections, which are 23 pages
in length.
The court addresses each of the objections below.
First, the magistrate judge recommends as follows
respecting exhaustion of state remedies:
[T]he undersigned proposes that the presiding District
Judge FIND that Grounds 2(a), 2(b), 2(c), 2(e), 2(f),
2(g), 2(h), 2(i) . . . 2(j) [and Ground 3] are
unexhausted and procedurally defaulted and are not
proper for this court’s review under 28 U.S.C. § 2254.
(PF&R at 15-16).
Petitioner objects to this recommendation.
He
asserts that his procedural default should be excused inasmuch
as he can show cause and prejudice.
respecting the doctrine’s existence.
The petitioner is correct
See, e.g., Fowler v.
Joyner, 753 F.3d 446, 460 (4th Cir. 2014) (“Ordinarily, a habeas
petitioner is procedurally barred from obtaining federal habeas
review of a claim if he failed to raise and exhaust the claim in
state court. . . . [When this occurs,] habeas review of the
claim will only be permitted if the petitioner can demonstrate
(1) cause for the default and prejudice resulting therefrom or
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(2) that the failure to consider the claim will result in a
fundamental miscarriage of justice.”) (citations omitted).
He is incorrect, however, that he may benefit from the
doctrine here.
It is the petitioner’s burden to demonstrate
cause and prejudice.
Coleman v. Thompson, 501 U.S. 722, 750
(1991) (explaining that defendant has the burden of
demonstrating cause and prejudice).
Aside from his very general
and vague observations, petitioner offers only the following
promised showing: “Given the page limitation upon pro se written
objections to the PF&R, petitioner prays this Court will afford
petitioner an opportunity to demonstrate that the defaulted . .
. claims are substantial and have some merit, and, further that
[his original state habeas counsel] Mr. Curry abandoned these
meritorious . . . claims.”
(Objecs. at 5).
Petitioner’s effort
to demonstrate cause and prejudice does not approach the
threshold.
him.
His plea respecting the page limitation does not aid
His objections span only 23 pages, well short of the 30
pages authorized by the court.
The petitioner has thus not
satisfied his burden to show cause and prejudice.
The objection
is not meritorious.
Second, the magistrate judge addresses the merits of
Grounds 1 and 10, in which petitioner asserts he was denied the
right to advance a “complete defense” when the circuit court
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denied funding for him to retain an additional mental health
expert after the first expert did not support petitioner’s
diagnosis of Intermittent Explosive Disorder (“IED”).
In
summary, the magistrate judge, following an in-depth treatment
of the record, recommends as follows:
As noted by Judge Nibert in his Final Order
denying the petitioner habeas corpus relief on this
ground, “there is nothing in the record to indicate
that Dr. Monroe would have presented the defense that
[the petitioner] sought” and “the issue was not the
funds required but whether the request was reasonable
considering the fact that an evaluation had been
performed by an expert chosen by the defendant’s
attorneys.” (ECF No. 12, Ex. 18 at 22). The
undersigned proposes that the presiding District Judge
FIND that Petitioner has not demonstrated that the
trial court’s refusal to allow the petitioner to seek
an additional expert witness on the IED issue was
fundamentally unfair or a miscarriage of justice and,
thus, Petitioner has not demonstrated a violation of
his right to compulsory process, due process of law,
or equal protection under the Sixth and Fourteenth
Amendments. The undersigned further proposes that the
presiding District Judge FIND that the state courts’
decisions denying habeas corpus relief on this claim
were neither contrary to, nor an unreasonable
application of, clearly-established federal law; nor
were they based on an unreasonable determination of
the facts presented in the state court proceeding.
Thus, the undersigned further proposes that the
presiding District Judge FIND that the Respondent is
entitled to judgment as a matter of law on Grounds 1
and 10 of Petitioner’s Amended Petition.
(PF&R at 28).
In his objections, petitioner alleges violations of
his Sixth and Fourteenth Amendment rights essentially based upon
the failure of his first chosen expert, Dr. Ralph Smith, to
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testify that petitioner suffered from IED.
The constitution
does not, however, compel a medical professional of an accused’s
choosing to give evidence favorable to the accused, especially
when the professional’s training and experience suggests such
evidence would be false.
(See, e.g., PF&R at 22 (“It’s a very
rare condition. It’s very difficult to meet the condition
because of the exclusion criteria, and once he met those, and I
didn’t believe he was in that category, it was my opinion it was
not worth pursuing any further.”) (quoting testimony of Dr.
Smith) (citation omitted)).
Petitioner further appears to suggest that the circuit
court denied the replacement expert for Dr. Smith based upon
defense counsels’ failure to inform the court that a statutory
increase in funds for such purposes was at his disposal.
That
is, at best, an incomplete appraisal of Judge Nibert’s views on
the matter. (See, e.g., PF&R at 23 (quoting Judge Nibert’s
order).1
The objection is not meritorious in light of the
One portion of Judge Nibert’s final order on the matter,
which is quoted in the PF&R, provides as follows:
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The Court, after conducting an evidentiary hearing and
evaluating the testimony of Dr. Smith, concluded that
Dr. Smith had been fair in his evaluation of the
defendant, and further concluded that the defendant
was seeking an additional expert because he did not
like the opinion of his first expert. The Court found
that defense counsel was looking for an expert that
had the same view as counsel with regard to the
disorder and that said motion is both unreasonable and
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magistrate judge’s thorough analysis.
As the magistrate judge
aptly recommends, the circuit court decisions denying relief on
this claim were neither contrary to, nor an unreasonable
application of, clearly established federal law.
Third, the magistrate judge addresses the merits of
the unexhausted portions of Ground 2, in which petitioner
asserts he was rendered ineffective assistance of counsel on the
following four bases:
d. Counsel failed to voir dire jury regarding the
impact of the Killeen, Texas murders.2
k. Counsel failed to ascertain Dr. Ralph Smith’s
opinion prior to offering his expert testimony.
l. Counsel failed to introduce a prior written
statement of Connie Nichols.
m. Counsel failed to timely object to the prosecutor’s
improper rebuttal argument and failed to request a
mistrial.
The petitioner does not object to the magistrate
judge’s adverse recommendations as to Grounds 2(d) and 2(l).
The court thus deems those two matters insusceptible to review.3
unnecessary. The Court felt it necessary to draw the
line somewhere.
(PF&R at 23).
2
On October 16, 1991, the second day of petitioner’s trial,
a man murdered 23 people in a Killeen, Texas cafeteria.
3
The same is true of petitioner’s challenge respecting
Ground 6, inasmuch as his objection lacks the specificity
necessary for scrutiny thereof.
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United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008);
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (“We have long held that the Federal Magistrates
Act cannot be interpreted to permit a party to ignore his right
to file objections with the district court . . . .”) (internal
quotation marks, alterations, and ellipsis omitted)).
Petitioner has objected respecting the recommendations
made on Grounds 2(k) and 2(m).
A summary of those
recommendations, respectively, appears below:
The undersigned has already addressed the petitioner’s
claims that that the trial court’s failure to allow
him to retain another expert witness concerning the
petitioner’s mental state and his provisional IED
diagnosis did not result in a violation of the
petitioner’s Sixth or Fourteenth Amendment rights, and
did not result in an unfair trial. Consequently, even
if the petitioner could show that his counsel’s
failure to determine Dr. Smith’s opinion prior to
offering his testimony to the trial court, in camera,
fell below an objective standard of reasonableness,
the petitioner ultimately cannot affirmatively prove
that, but for counsel’s allegedly unreasonable
conduct, the result of the proceedings would have been
different.
. . . .
[A]s noted herein, habeas relief is only warranted if
a prosecutor’s remarks rendered the trial
fundamentally unfair. The undersigned has proposed,
infra, that the presiding District Judge FIND that the
petitioner was not denied a fair trial based upon the
remarks of the prosecutor during his closing
arguments. Accordingly, the undersigned further
proposes that the presiding District Judge FIND that
the petitioner cannot satisfy the prejudice prong of
the Strickland standard and, thus, he is not entitled
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to habeas corpus relief on this basis.
(PF&R at 35, 37).
As to Ground 2(k), petitioner relies upon
Stevens v. McBride, 489 F. 3d 883 (7th Cir. 2007).
in Stevens is not binding precedent.
The decision
Furthermore, it is
distinguishable on many grounds, not the least of which is that
it involved a defense expert testifying during the mitigation
phase in a capital case who presented concerns far removed from
those surrounding Dr. Smith:
Stevens's lawyers had concluded that Dr. Lennon was a
“quack.” Indeed, it is uncontested that Stevens's
lawyers knew nothing about the content of Dr. Lennon's
planned testimony. The lawyers confessed at the postconviction hearing that they were utterly in the dark
about what Dr. Lennon would say when he took the
stand. They frankly admitted that during trial
preparations, Dr. Lennon would only repeat, “I can
handle it. Don't worry about it.” This is a complete
failure of the duty to investigate with no
professional justification.
Stevens v. McBride, 489 F.3d at 896.
The petitioner’s objection
concerning Ground 2(k) is not meritorious.
As to Ground 2(m), petitioner’s objection is
essentially non-responsive.
He contends that his counsel erred
in not preserving an objection to the prosecutor’s closing
argument.
As the magistrate judge notes, however, the
petitioner is obliged to show far more than mere error on
counsel’s part.
He must show that the prosecutor’s remarks
rendered his trial fundamentally unfair.
showing does not approach that standard.
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Petitioner’s attempted
Fourth, the magistrate judge addresses the merits of
Ground 4, in which petitioner asserts he was denied a fair and
impartial jury trial when the trial court failed to provide the
jury with complete and accurate instructions on the law
applicable to his case:
In the instant case, applying the authority of the
state’s highest court, the trial court found that the
evidence did not support an instruction on voluntary
manslaughter. As noted above, it is not the province
of this court to re-visit whether that determination
was correct. Rather, construing this claim broadly as
an assertion that instructing the jury on malice and
the inference thereof, and the failure to instruct the
jury on voluntary manslaughter, resulted in the denial
of a fair trial for the petitioner, and viewing the
instructions as a whole in light of all the evidence
presented, the undersigned proposes that the presiding
District Judge FIND that the instructions, given or
omitted, did not so infect the entire trial as to
result in a violation of due process.
. . . .
A review of the instructions given to the jury,
taken as a whole, in the context of the evidence
presented at trial, including the instructions
concerning impeachment and corroboration of witness
testimony, were not found to be erroneous by the
SCAWV. The undersigned proposes that the presiding
District Judge FIND that the petitioner has not
sufficiently demonstrated that the instructions given
at his trial fundamentally impugned the fairness
thereof. Accordingly, the petitioner has not
established that the state court’s decision denying
him relief on this basis was contrary to, or an
unreasonable application of, clearly established
federal law.
(PF&R 45-46, 48).
The petitioner’s objection does little more
than state his view that the circuit court erred at trial, which
left the jury with the option of convicting him either on first
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or second degree murder alone.
As discussed at pages 43-45 of
the PF&R, however, the circuit court fully explained its ruling
adverse to petitioner concerning the requested voluntary
manslaughter charge, which was based upon binding precedent from
the Supreme Court of Appeals of West Virginia.
Additionally, to
the extent that ruling, based on state law, could be stretched
into a cognizable federal constitutional claim, it was plainly
not one that was contrary to, or an unreasonable application of,
clearly established federal law.
Fifth, the magistrate judge addresses the merits of
Ground 5, in which petitioner asserts he was denied a fair trial
on the basis that Thomas C. Evans, III, who was appointed as a
special prosecutor in his case, was not properly appointed.
He
asserts that Mr. Evans was administered the oath of office by
the circuit clerk prior to his appointment order being entered
by the circuit court.
The magistrate judge’s recommendation may
be summarized as follows:
In order to find a due process violation, the court
must find that the appointment of the special
prosecutor involved circumstances that impugned the
fundamental fairness of the petitioner’s trial. The
petitioner has not offered any support for such a
finding beyond his bald assertion that Mr. Evans took
the oath prior to the order appointing him actually
being entered into the record.
(PF&R at 50).
The petitioner asserts that “Respondent's
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Memorandum of Law in Support of Respondent's Motion to Summary
Judgment does not demonstrate that the State complied with the
prescribed procedure for disqualifying a duly elected
prosecuting attorney . . . .”
(Objecs. at 19).
observation is beside the point.
That
As the magistrate judge notes,
petitioner must demonstrate that the circumstances surrounding
Mr. Evans’ appointment compromised the fundamental fairness of
his trial.
Inasmuch as he has failed to do so, the objection is
not meritorious.
Having reviewed the balance of the magistrate judge’s
well-reasoned and supported recommendations, the petitioner’s
succinct, remaining objections are either patently insufficient
or fall well short of satisfying the rigorous habeas standards
governing the claims.
Inasmuch as the objections are
insufficient to warrant disturbing the magistrate judge’s
findings and recommendations, it is ORDERED as follows:
1.
That the findings made in the PF&R be, and hereby are,
adopted by the court;
2.
That the respondent’s motion for summary judgment and
incorporated motion to dismiss be, and hereby are,
granted;
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3.
That the petitioner’s Motion to Deny Respondent’s
Motion to Dismiss be, and hereby is, denied;
4.
That the section 2254 petition, and this action, be,
and hereby are, dismissed.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record, any
unrepresented parties, and the magistrate judge.
DATED:
March 27, 2015
John T. Copenhaver, Jr.
United States District Judge
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