Samples v. Ballard
Filing
17
MEMORANDUM OPINION AND ORDER adopting in part 15 PROPOSED FINDINGS AND RECOMMENDATION to the extent that it is consistent with this opinion; overruling in part Petitioner's 16 OBJECTIONS; granting Respondent's 9 MOTION for Summary Ju dgment; denying without prejudice Petitioner's 12 MOTION for Partial Summary Judgment; denying Petitioner's 6 MOTION to Expand the Record; denying Petitioner's request to hold this matter in abeyance, and finding that Petitioner ha s abandoned his request to sever his exhausted claims and proceed solely on those claims; dismissing without prejudice Petitioner's 2 Petition for Writ of Habeas Corpus (2254); denying a certificate of appealability. Signed by Judge Thomas E. Johnston on 3/31/2014. (cc: attys; any unrepresented party) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JAMES TIMOTHY SAMPLES,
Plaintiff,
v.
CIVIL ACTION NO. 2:13-cv-11638
DAVID BALLARD,
Defendant.
MEMORANDUM OPINION AND ORDER
On May 17, 2013 the Clerk‟s Office received Petitioner James Timothy Samples‟
(“Petitioner”) pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 (“petition”).
(ECF 2.) This action was referred to United States Magistrate Judge Dwane L. Tinsley for
submission of proposed findings and a disposition (“PF&R”). (ECF 3.) On January 21, 2014,
Magistrate Judge Tinsley submitted a PF&R concerning Respondent David Ballard‟s
(“Respondent”) motion to dismiss for failure to exhaust state court remedies 1 (ECF 9),
Petitioner‟s motion to expand the record (ECF 6), and Petitioner‟s motion for partial summary
judgment (ECF 12). On February 4, 2014, Petitioner filed timely objections to the PF&R. (ECF
11.)
1
As the PF&R observes, this motion appears to have been mistakenly entitled “Motion for Summary Judgment.”
The PF&R treated the motion as a motion to dismiss for failure to exhaust state court remedies. (ECF 15 at 1 n.1.)
The Court concurs with that characterization, and further notes that Respondent has not objected to the PF&R‟s
treatment of his motion.
1
I.
BACKGROUND
On January 16, 1998, Petitioner was convicted upon a jury verdict of felony murder in
the first degree in the commission of aggravated robbery and burglary.
(ECF 9-2 at 3.)
Thereafter, the trial court sentenced Petitioner to life in prison with no recommendation of
mercy. (ECF 9-3 at 2.)
The complete factual and procedural history of Petitioner‟s direct appeal and various
collateral appeals in the state courts, as well as a detailed review of Petitioner‟s claims in his
federal habeas petition, are set forth in detail in the PF&R and need not be repeated here.
The PF&R recommends that this Court find that Petitioner failed to exhaust state
remedies with respect to a number of the claims that he seeks to raise in his petition and add in
his “motion to expand the record.” (ECF 15 at 26−27.) The PF&R further proposes that
Petitioner has not demonstrated good cause for his failure to first present these unexhausted
claims in the state courts and that, therefore, a stay-and-abeyance pursuant to Rhines v. Weber,
544 U.S. 269 (2005), is not appropriate in this matter. (ECF 15 at 23−26.) Accordingly, the
PF&R recommends that this Court grant Respondent‟s motion, deny Petitioner‟s motion to
expand the record, and dismiss Petitioner‟s petition without prejudice pending exhaustion of his
state court remedies. (ECF 15 at 26−27.) Following this recommendation, the PF&R also
recommends that Petitioner‟s motion for partial summary judgment is premature and should be
denied without prejudice. (ECF 15 at 26.)
II.
STANDARD OF REVIEW
The Court is required to “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C). However, the Court is not required to review, under a de novo or any other
2
standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, this Court need not conduct a de novo review when a petitioner “makes
general and conclusory objections that do not direct the Court to a specific error in the
magistrate‟s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). In reviewing those portions of the PF&R to which Petitioner has objected, this
Court will consider the fact that Plaintiff is acting pro se, and his pleadings will be accorded
liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d
1291, 1295 (4th Cir. 1978).
III.
DISCUSSION
Initially, the Court observes that Petitioner‟s pro se filing detailing his objections to the
PF&R principally recites facts and legal standards while noting that he “specifically objects” to
certain findings. To the extent that the Court has been able to discern specific arguments or
assertions of error beyond such general and conclusory “specific objections,” the Court has
endeavored to afford Petitioner‟s arguments liberal construction.
A. Exhaustion Objections
Petitioner objects to the PF&R‟s recommendation that some of the claims that he seeks to
raise in his petition are unexhausted. The Court considers each of Petitioner‟s objections in turn.
1. Legal Standard
The requirements for exhausting state court remedies prior to bringing a federal habeas
petition have been thoroughly stated by the Northern District of West Virginia:
A petition for a writ of habeas corpus is not a substitute for
pursuing state judicial remedies. See 28 U.S.C. § 2254(b). Absent
a valid excuse, a petition for writ of habeas corpus should not be
entertained unless the petitioner has first exhausted his state
3
remedies. Castille v. Peoples, 489 U.S. 346, 349, reh’g denied,
490 U.S. 1076 (1989). To exhaust state remedies, a habeas
petitioner must fairly present the substance of his claim to the
state‟s highest court. Matthews v. Evatt, 105 F.3d 907 (4th Cir.
1997), cert. denied, 522 U.S. 833 (1997). “A claim is fairly
presented when the petitioner presented to the state courts the
substance of his federal habeas corpus claim. The ground relied
upon must be presented face-up and squarely; the federal question
must be plainly defined.” Id. at 911. “A litigant wishing to raise a
federal issue can easily indicate the federal law basis for his claim
in a state-court petition or brief . . . by citing in conjunction with
the claim the federal source of law on which he relies or a case
deciding such a claim on federal grounds, or by simply labeling the
claim „federal.‟” Baldwin v. Reese, 541 U .S. 27, 32 (2004); see
also Howell v. Mississippi, 543 U.S. 440, 444 (2005).
In West Virginia, the exhaustion of state remedies is accomplished
by a petitioner raising the federal issue on direct appeal from his
conviction or in a post-conviction state habeas corpus proceeding
followed by an appeal to the West Virginia Supreme Court of
Appeals. See Moore v. Kirby, 879 F.Supp. 592, 593 (S.D. W. Va.
1995); see also Bayerle v. Godwin, 825 F.Supp. 113, 114 (N.D. W.
Va. 1993). A federal court may only consider those issues the
petitioner presented to state court, and “[a]n applicant shall not be
deemed to have exhausted the remedies available in the courts of
the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c).
In addition, it is petitioner‟s burden to demonstrate that he has
exhausted his state judicial remedies. Breard v. Pruett, 134 F.3d
615, 619 (4th Cir. 1998), cert. denied, 523 U.S. 371 (1998). “The
exhaustion requirement is not satisfied if the petitioner presents
new legal theories or factual claims for the first time in his federal
habeas petition.” Id. “If state courts are to be given the
opportunity to correct alleged violations of prisoners‟ federal
rights, they must surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution. If a habeas
petitioner wishes to claim that an evidentiary ruling at a state court
trial denied him the due process of law guaranteed by the
Fourteenth Amendment, he must say so, not only in federal court,
but in state court.” Duncan v. Henry, 513 U.S. 364, 365 (1995).
Further, in addition to providing the state court with the facts
supporting the claimed constitutional violation, the petitioner must
also “explain how those alleged events establish a violation of his
constitutional rights.” Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.
1994). Finally, a petitioner must show that the claims he raised in
4
the state proceedings are the exact same claims he is raising in a
federal habeas petition. See Pitchess v. Davis, 421 U.S. 482, 487
(1975); see also Picard v. O’Connor, 404 U.S. 270, 275–76
(1971). “It is not enough that all the facts necessary to support the
federal claims were before the state courts, or that a somewhat
similar state-law claim was made.” Anderson v. Harless, 459 U.S.
4, 6 (1982) (internal citations omitted). Not only must the claim
itself be the same, but the same factual grounds must be raised in
support of the claims in state court as in federal court, and a
specific federal constitutional claim must be raised in the state
proceedings. Id.
Demere v. Ballard, 2:09CV83, 2013 WL 5352950, *2−3 (N.D. W. Va. Sept. 24, 2013) (Bailey,
J.).
2. Ground Two Sub-parts (D) through (H)
Petitioner objects to the PF&R‟s conclusion that Petitioner‟s claims contained in Ground
Two sub-parts (D) through (H) are not exhausted, and are, in fact, procedurally defaulted due to
having been abandoned or waived. (ECF 16.)
These subparts, which are detailed in the PF&R, allege various claims of ineffective
assistance of trial counsel and a claim of “prosecutorial overmatch” at trial. (ECF 2 at 8.)
Petitioner does not appear to contest the magistrate judge‟s finding (ECF 16 at 4−5), but rather
argues that he “simply could not persuade [post-conviction counsel] to present [these claims] to
the Court” and that post-conviction counsel “declined to explicate [these] meritorious claims.”
(ECF 16 at 5−6.) Petitioner argues that pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012), the
Court should excuse petitioner‟s failure to present these claims to the state courts because of the
ineffective assistance of post-conviction counsel.
In Martinez, the Supreme Court held that a federal habeas court can find cause to excuse
a procedural default where:
(1) the claim of „ineffective assistance of trial counsel‟ was a
„substantial‟ claim; (2) the „cause‟ consisted of there being „no
counsel‟ or only „ineffective‟ counsel during the state collateral
5
review proceeding; (3) the state collateral review proceeding was
the „initial‟ review proceeding in respect to the „ineffectiveassistance-of-trial-counsel claim‟; and (4) state law requires that an
„ineffective assistance of trial counsel [claim] . . . be raised in an
initial-review collateral proceeding.‟
Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013) (quoting Martinez, 132 S.Ct. at 1318).2 See also
Gray v. Pearson, 526 F. App‟x 331, 333 (4th Cir. 2013) (discussing holding of Martinez).
Petitioner may be able to state a claim pursuant to Martinez, but such claim must be
brought pursuant to a properly filed habeas petition in federal court. As discussed below,
because other claims Plaintiff seeks to bring in his current petition and motion to expand the
record are not exhausted, his instant petition must be dismissed.3
Accordingly, the Court OVERRULES Petitioner‟s objection and ADOPTS the finding
and recommendation of the PF&R as to Ground Two. As the Magistrate Judge noted, and as
discussed below, to the extent that Petitioner chooses to pursue this argument, he should address
the Martinez requirements in his new federal habeas petition, filed after the exhaustion of his
state remedies.
3. Ground Four—Eighth Amendment Claim
Next, Petitioner objects to the PF&R‟s conclusion that he failed to exhaust state remedies
with respect to the Eighth Amendment argument contained in Ground 4. (ECF 15 at 18−19.)
2
As the Fourth Circuit has explained, “[i]n Trevino, the Supreme Court elaborated on and expanded the Martinez
exception, explaining that it is applicable not only in circumstances where a state requires a defendant to initially
raise an ineffective-assistance-of-trial-counsel claim in a state collateral proceeding, but also when a state, as the
Court found was the case in Texas, maintains a procedural regime that amounts to such a requirement, i.e., when it is
„virtually impossible‟ for an ineffective assistance claim to be raised on direct review.” Gray v. Pearson, 526 F.
App‟x 331, 333 (4th Cir. 2013) (discussing Trevino, 133 S.Ct. at 1914–15).
3
For example, Petitioner has not demonstrated in his instant briefing that his two state post-conviction counsel were,
in fact, ineffective in failing to raise the claims he seeks to bring in Ground 2 subparts (D) through (H). Petitioner
simply makes conclusory assertions that his post-conviction counsel were ineffective in failing to bring these
arguments, and that “this aspect of the ineffective assistance of trial and appellate counsel claim is a substantial
one.” (ECF 11 at 5).
6
In Ground Four of his Petition, Petitioner argues, as pertinent here,4 that “the state courts
violated the constitutional prohibition against cruel and unusual punishment as secured by the
Eighth Amendment to the Constitution of the U.S.A. when the prosecuting attorney failed to
prove all elements of robbery in the first degree or burglary.” (ECF 2 at 11.) The PF&R
proposes that the Court find such claim to be unexhausted because Petitioner‟s Amended Petition
filed in the Circuit Court of Kanawha County by petitioner‟s court-appointed post-conviction
counsel did not raise any claims that could be construed as invoking the Eighth Amendment‟s
cruel and unusual punishment clause. (ECF 15 at 19.)
Petitioner claims, as he did before the magistrate judge, that he “adequately apprised the
SCAWV of the substance, facts, and the legal theory” of this Eighth Amendment claim in a
previously filed pro se petition, which petition was never ruled on by the WVSCA but rather
remanded to the Circuit Court and thereafter amended after post-conviction counsel was
appointed to Petitioner.
The Court first observes that, notwithstanding his suggestion, Petitioner does not appear
to have actually raised an Eighth Amendment claim at all in the pro se petition that he references.
(ECF 9-7.) This petition makes due process arguments under the Fourteenth Amendment, but it
does not appear to mention either the Eighth Amendment, cruel and unusual punishment, or
“proportionate sentences,” nor does it appear to cite any pertinent authority in support of a claim
under the Eighth Amendment. (ECF 9-7.)
Petitioner appears to acknowledge this failure, but avers that if a sentence violates due
process it should also violate “the guarantee of a proportionate sentence secured by the Eighth
4
Petitioner also raised a due process challenge under the Fifth and Fourteenth Amendments to the U.S. Constitution
but the parties appear to be in agreement that this due process claim is exhausted, and Petitioner has not raised any
objection with respect to that claim. (ECF 15 at 18.)
7
Amendment.”
Therefore, Petitioner appears to contend, because he presented due process
arguments to the state courts, he implicitly also presented an Eighth Amendment argument.
(ECF 16 at 4.) The Court rejects such a wide-ranging and conclusory proposition. Petitioner
cites no authority in support of such an outcome, nor has the Court identified any directly
applicable authority. Indeed, such a conclusion would appear to be squarely at odds with the
weight of applicable authority that holds that the grounds relied upon for relief must be presented
face-up and squarely to the state courts and the federal question must be plainly defined in order
for such a claim to be exhausted.
Petitioner‟s objection, however, also fails for another reason. As the magistrate judge
noted, the prior pro se petition to which Petitioner directs the Court was ultimately remanded by
the WVSCA without any adjudication. (ECF 15 at 19.) Only thereafter, when Petitioner was
appointed post-conviction counsel who filed an Amended Petition, were Petitioner‟s claims
presented to and ruled on by both the Circuit Court and the WVSCA. (ECF 9-9, 9-10, 9-11, 912, 9-13.)
Accordingly, the Court OVERRULES Petitioner‟s objection and ADOPTS the finding
and recommendation of the PF&R as to the Eighth Amendment claim in Ground Four.
4. Ground Five
Next, Petitioner objects to the PF&R‟s conclusion that he failed to exhaust state remedies
with respect to the argument contained in Ground Five. (ECF 15 at 20−21; ECF 16 at 6−8.)
In Ground Five, Petitioner contends that his due process rights as secured by the Fifth and
Fourteenth Amendments were violated when the circuit court denied his motion for acquittal at
the conclusion of the State‟s case in chief. (ECF 2 at 12.) The PF&R proposes that the Court
find that Ground Five was only raised in the state court proceedings as matters of trial court
8
error, and not as violations of specific federal rights such as a denial of due process. (ECF 15 at
20−21.)
Petitioner‟s objection is difficult to discern and principally composed of reciting legal
standards related to evaluating motions for a judgment of acquittal. (ECF 16 at 7.) It appears
that Petitioner may be arguing that the standards governing a motion for a judgment of acquittal
are either rooted in or intrinsically related to federal due process, and that a wrongful denial of
such motion is per se a violation of the due process guarantees of the Fifth and Fourteenth
Amendments. (Id.) Indeed, based on the facts Petitioner provides in his petition in support of
Ground Five, it appears that this Ground is an argument that a violation of due process under the
Fifth and Fourteenth Amendments occurred because the circuit court erred in denying his motion
for a judgment of acquittal where insufficient evidence supported his conviction. (ECF 2 at
12−14.) The question thus becomes whether Petitioner in fact presented such a due process
argument to the state courts.
The Fourth Circuit has held that “[a]ny challenge to the sufficiency of the evidence to
convict in a state prosecution is necessarily a due process challenge to the conviction.” West v.
Wright, 931 F.2d 262, 266 (4th Cir. 1991), overruled on other grounds, 505 U.S. 277 (1979); see
also Jackson v. Virginia, 443 U.S. 307, 322 (1979) (“A challenge to a state conviction brought
on the ground that the evidence cannot fairly be deemed sufficient to have established guilt
beyond a reasonable doubt states a federal constitutional claim.”); King v. N. Carolina, 5:11-HC2124-BO, 2012 WL 3957681, at *6 (E.D.N.C. Sept. 10, 2012) appeal dismissed, 507 F. App‟x
323 (4th Cir. 2013) (observing that in the habeas context any claim of insufficient evidence is
necessarily a federal due process claim); Green-El v. Morgan, CIV.A. AW-08-700, 2010 WL
1980145, at *15 (D. Md. May 12, 2010) (same); Long v. Warden, NCC, 7:05CV00533, 2006 WL
9
167904, at *7 (W.D. Va. Jan. 23, 2006) (noting that “trial counsel was not required to label his
objections to the sufficiency of the evidence in constitutional terms in order to preserve the issue
for federal habeas review”); Newman v. Washington, 7:05CV00311, 2005 WL 2777282, at *2
and n.2 (W.D. Va. Oct. 25, 2005) (noting that “the fact that [the habeas petitioner] did not phrase
his challenge [to the sufficiency of the evidence supporting his convictions] in state court in
specific constitutional terms is of no consequence”).
In his direct appeal, Petitioner challenged the circuit court‟s denial of his motion for
acquittal on several grounds, including, as relevant here, that there was an “absence of any
substantial evidence upon which the jury might justifiably find the Petitioner guilty beyond a
reasonable doubt” and that, therefore, “it was error for the [circuit court] to deny Petitioner‟s
motion for acquittal.” (ECF 9-4 at 27−31, 36−37.) Petitioner raised many specific alleged
evidentiary failings throughout his direct appeal brief (ECF 9-4 at 22−33) and also developed an
argument that the state “failed to establish the lements [sic] of aggravated robbery and burglary
as the predicate offenses necessary for the felony murder conviction.” (ECF 9-4 at 21.)
Respondents did not reply to Petitioner‟s objection, but asserted in their motion to
dismiss that although Petitioner “did challenge the trial court‟s denial of the defense‟s motion for
acquittal on several grounds in the [sic] his direct appeal (grounds two, three and four), the issue
was argued purely on state law grounds within the context of a trial court rulings [sic].” (ECF 10
at 13.) Although the Court agrees that Petitioner did not squarely advance his sufficiency
argument in specific constitutional terms, the “constitutional substance” of that claim is
nonetheless evident. Wright, 931 F.2d at 266 (“The fact that [petitioner] did not couch his
objections and challenges in state court in specific constitutional terms is of no consequence; it is
10
not necessary to cite “book and verse on the federal constitution” so long as the constitutional
substance of the claim is evident.”).
In light of the foregoing, the Court concludes that Petitioner adequately alerted the state
courts in his direct appeal that he was raising a due process federal constitutional claim by
challenging the sufficiency of the evidence. Accordingly, the Court SUSTAINS Petitioner‟s
objection with respect to the PF&R‟s finding and recommendation as to Ground Five.
5. Ground Six
Next, Petitioner objects to the PF&R‟s conclusion that he failed to exhaust state remedies
with respect to the argument contained in Ground Six. (ECF 15 at 20-21; ECF 16 at 6−8.)
In Ground Six, Petitioner argues that his right to a fair and impartial trial as secured by
the Fifth, Sixth, Eighth and Fourteenth Amendments was violated by the admission at trial of
“prejudicial and gruesome” photographs of the victim. (ECF 2 at 14.) The PF&R proposes that
the Court find that Ground Six was only raised in the state court proceedings as matters of trial
court error, and not as a violation of specific federal rights such as the denial of a fair trial. (ECF
15 at 20−21.)
Petitioner‟s objection appears to be that these constitutional claims were in fact exhausted
because they were raised in his direct appeal. As such, the question becomes whether Petitioner
actually presented the same argument to the state courts as he seeks to raise now.
Petitioner‟s argument in his direct appeal exclusively concerned the circuit court‟s
evidentiary ruling on the admissibility of the photographs pursuant to Rules 401, 402, and 403 of
the West Virginia Rules of Evidence. (ECF 9-4 at 34−35.) Petitioner did not allege that the
11
circuit court erred in refusing to exclude the two gruesome photographs because its decision
denied him any rights provided for by the Fifth, Sixth, Eight and Fourteenth Amendments.5
The Supreme Court has held that “[i]f a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of law guaranteed by the
Fourteenth Amendment, he must say so, not only in federal court, but in state court. Duncan v.
Henry, 513 U.S. 364, 366 (1995). In Duncan, the Petitioner objected at trial to certain testimony
based on a state evidentiary rule, and on direct appeal he pursued this evidentiary objection by
requesting that the appellate court find that the error was a “miscarriage of justice” under the
state constitution. Id. at 364. The Supreme Court rejected his assertion in his federal habeas
petition that such evidentiary error amounted to a denial of due process under the United States
Constitution, explaining that he did not apprise the state court that his claim was that the
evidentiary ruling was not only a violation of state law, but also denied him due process as
guaranteed by the Fourteenth Amendment. Id. at 365−66.
Here, Duncan directly forecloses Petitioner‟s claim with respect to Fourteenth
Amendment.
The Court further finds that the reasoning in Duncan similarly extends to
Petitioner‟s claims under the Fifth, Sixth, and Eighth Amendments as well. Petitioner simply did
not alert the state courts that there was an alleged federal nature to his claim regarding the circuit
court‟s evidentiary ruling.
Accordingly, the Court OVERRULES Petitioner‟s objection and ADOPTS the finding
and recommendation of the PF&R as to Ground Six.
5
The Court observes that W. Va. R. Evid. 402 provides that “[a]ll relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by the Constitution of the State of West Virginia, by
these rules, or by other rules adopted by the Supreme Court of Appeals.” (Emphasis added.) Petitioner‟s argument
in his direct appeal, however, did not address relevance under the U.S. Constitution. Rather, it appears to have been
exclusively concerned with the relevance of the evidence as balanced against the factors provided for in Rule 403
and those West Virginia cases describing the application of the balancing test provided for in Rule 403. See State v.
Lopez, 476 S.E.2d 227 (W.Va. 1996); State v. Derr, 451 S.E.2d 731 (W. Va. 1994).
12
6. Grounds Raised in Motion to Expand the Record
Last, Petitioner objects to the PF&R‟s recommendation that the Court deny his motion to
expand the record, which motion seeks to add additional unexhausted claims of ineffective
assistance of postconviction counsel that are currently pending before the WVSCA. (ECF 15 at
23.)
Petitioner does not appear to dispute that the claims he seeks to add are still pending in
the WVSCA. Rather, he appears to argue that he has exhausted his state remedies with respect
to these new claims because he “adequately presented his claims to the [WVSCA] before seeking
relief from the federal courts” by filing a petition and petition of appeal. Petitioner notes that at
the time he filed his objection the issue has been pending for four months in the WVSCA.
The Court rejects Petitioner‟s contention. His claims were first presented to the West
Virginia state courts only recently and the appeal of his petition is still pending in the WVSCA.
Indeed, these claims were filed nearly a month after Petitioner filed his federal petition. (ECF 2
at 1 (May 17, 2013); ECF 9-15 at 4 (June 13, 2013).) As the magistrate judge observed, such
claims are clearly currently unexhausted, but, once exhausted, may be included in a subsequent
federal petition that is timely filed. Moreover, contrary to Petitioner‟s contention, the fact that a
petition for appeal has been pending for a matter of months does not mean that the claim is
exhausted, that exhaustion is futile, or that there are no available state court remedies. See, e.g.,
Shelton v. Heard, 696 F.2d 1127, 1128−29 (5th Cir. 1983) (explaining that “exhaustion is not
required when the state procedures do not afford swift vindication” and collecting cases in which
a delay of one year or more in the consideration of a state habeas corpus petition was sufficient
to waive the exhaustion requirement) (citation omitted); Puryear v. Giles, 5:12-CV-2994-KOBJEO, 2012 WL 6963924, at *2 (N.D. Ala. Dec. 3, 2012) report and recommendation adopted,
13
5:12-CV-02994-KOB, 2013 WL 360412 (N.D. Ala. Jan. 25, 2013) (collecting cases and
observing that “a federal habeas petitioner need not wait until his state petitions for relief are
exhausted, if the state court has unreasonably or without explanation failed to address petitions
for relief,” but finding such standard was not satisfied where petition had been pending in state
court for less than a year) (citations omitted); see also Sims v. Snedeker, 167 F. App‟x 47, 48
(10th Cir. 2006) (unpublished) (explaining that a state prisoner may be able to demonstrate that a
state court‟s failure to rule on his habeas petition constitutes an “absence of available State
corrective process” or creates circumstances that render such process “ineffective to protect [his]
rights” under 28 U.S.C. § 2254(b)(1)(B) when a “state habeas petition [is] languishing as a result
of inordinate, excessive and inexcusable delay,” but rejecting petitioner‟s contention where his
petition had been before the state courts for only five and a half months at the time the district
court dismissed his federal petition) (citations omitted).
Accordingly, the Court OVERRULES Petitioner‟s objections with respect to the
PF&R‟s recommendation that his motion to expand be denied.
B. Severance
In his reply brief before the magistrate judge, Petitioner requested that he be permitted to
sever his unexhausted claims and seek adjudication only on the exhausted claims. (ECF 11 at
15.) The PF&R notified Petitioner that by doing so he risked giving up the right to ever pursue
federal habeas relief on the unexhausted claims. The PF&R further advised Petitioner that if he
nonetheless wished to sever his unexhausted claims and pursue relief only on the exhausted
claims identified by the magistrate judge, he should advise the Court in writing during the period
in which he could object to the PF&R. (ECF 15 at 27.) Petitioner‟s objections do not state such
a request, nor has Petitioner filed any separate motion to so proceed.
14
Accordingly, the Court FINDS that Petitioner does not seek to sever his unexhausted
claims and pursue relief only on his exhausted claims.
C. Motion for Partial Summary Judgment on Ground One
Petitioner‟s objection with respect to PF&R‟s recommendation that his motion for partial
summary judgment be denied is, in full: “[T]here is no further state remedy available to
petitioner as to this claim for relief and it would not violate state-federal comity to rule on this
Motion.”
In his partial motion for summary judgment, Petitioner requests that the Court rule on
Ground One, which ground the parties appear to agree is exhausted. (ECF 12 at 2.) The PF&R
recommends that the Court find that petitioner‟s motion is premature and should be denied
without prejudice in light of the proposed finding that certain other claims raised in Petitioner‟s
petition are unexhausted.
Having reviewed Petitioner‟s objection, the Court agrees with the magistrate judge that it
is premature in light of the conclusion that Petitioner has brought a mixed petition of exhausted
and unexhausted claims. Moreover, as noted above, Petitioner has not clearly indicated that he
wants to sever Grounds One and Three and seek adjudication only with respect to those
exhausted claims.
Accordingly, the Court OVERRULES Petitioner‟s objection with respect to the PF&R‟s
recommendation that the Court deny without prejudice as premature his motion for partial
summary judgment.
D. Stay and Abeyance
Finally, Petitioner objects to the PF&R‟s recommendation that the Court deny
Petitioner‟s request that this Court hold his federal petition in abeyance pending exhaustion of
15
his state court remedies concerning his unexhausted claims. (ECF 16 at 11−12; ECF 15 at
23−25.) The PF&R concludes that Petitioner has 54 days remaining under the applicable oneyear statute of limitations provided for in section 28 U.S.C. § 2244(d)(2), and that this statute of
limitations is presently tolled by Petitioner‟s pending state habeas petition and appeal. (ECF 15
at 25.)
Accordingly, the PF&R concludes, a stay and abeyance is not warranted because
Petitioner has sufficient time to file a new petition after the exhaustion of his state court
remedies. (Id.)
1. Whether the Statue of Limitations is Currently Tolled
With respect to tolling the statute of limitations for filing a federal habeas petition:
The statute of limitations in AEDPA, under § 2244(d)(2), provides
that the one-year limitations period is tolled for “[t]he time during
which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2). “[U]nder § 2244(d)(2)
the entire period of state post-conviction 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). Markley v. Coleman,
215 W.Va. 729, 733, 601 S.E.2d 49 (2004) permits a second
habeas petition to address a claim for ineffective assistance of prior
habeas counsel. The Fourth Circuit has held that all proceedings
properly filed under W. Va. Code § 53–4A–1, et seq., West
Virginia‟s Post–Conviction Habeas Corpus Rules, are considered
“collateral review” for purposes of tolling the one-year limitation.
See Walkowiak v. Haines, 272 F.3d 234, 238 (4th Cir. 2001).
Therefore, [a] second state habeas proceeding tolls the one-year
limitation, if the state proceeding was properly filed.
McNemar v. Plumley, 2:13-CV-27, 2013 WL 1962315, at *2 (N.D. W. Va. May 10, 2013).
“[A]n application is „properly filed‟ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings. These usually prescribe, for example, the
form of the document, the time limits upon its delivery, the court and office in which it must be
16
lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations omitted);
see also Escalante v. Watson, 488 F. App‟x 694, 697 (4th Cir. 2012) cert. denied, 133 S. Ct. 951,
(2013) (discussing standards).
Additionally, a petition that is rejected by a state court as untimely is not properly filed
within the meaning of section 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414, 417
(2005); accord Allen v. Siebert, 552 U.S. 3, 5-6 (2007). As this Court has previously observed,
however, “[i]n West Virginia, timeliness of a state habeas petition is not a concern because „[a]
petition for a writ of habeas corpus . . . may be filed at any time after the conviction and sentence
in the criminal proceedings have been rendered and imposed and the time for the taking of an
appeal ... has expired or ... exhausted.‟ Harper v. Ballard, CIV.A. 3:12-00653, 2013 WL
285412, at *7 (S.D.W. Va. Jan. 24, 2013) appeal dismissed, 523 F. App‟x 228 (4th Cir. 2013)
(citing W. Va. Code § 53–4A–1(e)).
Here, Petitioner appears to object to the PF&R‟s calculation regarding the time remaining
for him to timely file a federal habeas petition and the PF&R‟s conclusion that the period in
which to do so is currently tolled during the pendency of his pending state habeas appeal.
Petitioner, however, offers absolutely no argument or evidence as to why the decision reached by
the magistrate judge was in error beyond a conclusory assertion that he “specifically objects to
this finding . . . .” (ECF 16 at 12.) Such conclusory assertions do little to alert the Court to the
actual substance of an objection, let alone to direct the Court to the actual error alleged.
Nonetheless, a review of the magistrate judge‟s findings indicates that his calculation
with respect to the periods of time during which the statute of limitations was tolled appears to
be correct.
Moreover, because Petitioner‟s pending state court petition alleges ineffective
assistance of post-conviction counsel, and because there is no indication in the record that such
17
petition and subsequent appeal were not properly filed within the meaning of section 2244(d)(2),
(and, indeed, neither Petitioner nor Respondent makes any such assertion), the magistrate judge‟s
conclusion that the statute of limitations is tolled appears to be correct based on the available
record. See, e.g., McNemar, 2013 WL 1962315, at *2 (explaining that petitioner‟s second state
habeas petition if properly filed tolls the statute of limitations under section 2244(d)(2)); Kearns
v. Hoke, 1:09-cv-156, 2010 WL 3120045, at *4 (N.D. W. Va. Aug. 5, 2010) (finding that a
second state habeas petition claiming that prior habeas counsel was ineffective tolled the statute
of limitations period under section 2244(d)).
2. Whether a Stay and Abeyance is Warranted
The Supreme Court has held that a district court may, under certain limited
circumstances, stay a petition and hold it in abeyance while a petitioner exhausts his state
remedies. Rhines v. Weber, 544 U.S. 269, 275−77 (2005). A stay with respect to a mixed
petition is only appropriate, however, when the district court determines that “[1] the petitioner
had good cause for his failure to exhaust, [2] his unexhausted claims are potentially meritorious,
and [3] there is no indication that the petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278. Additionally, the Supreme Court has contemplated that a prisoner seeking
state postconviction relief who fears litigating in state court for years only to find out at the end
that his petition was never “properly filed” (and thus his federal petition is time barred), might
avoid such a predicament by “filing a „protective‟ petition in federal court and asking the federal
court to stay and abey the federal habeas proceedings until state remedies are exhausted.” Pace
v. DiGuglielmo, 544 U.S. 408, 416 (2005). A petitioner, however, must demonstrate “reasonable
confusion” about whether a state filing would be timely in order to constitute “good cause” under
Rhines. Id.
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Petitioner‟s objections to the magistrate‟s recommendation regarding whether a stay and
abeyance is warranted here are simply too conclusory for the Court to completely consider.
Petitioner offers no argument as to why a stay and abeyance is appropriate, but rather recites
certain applicable legal standards and “ask[s] that this Court find that the unexhausted claims are
not plainly meritless and that petitioner has diligently pursued the available remedies in state and
federal court . . . .”
(ECF 16 at 12−13.)
Petitioner has not argued or even implicitly
demonstrated that good cause exists for granting a stay and abeyance.
Accordingly, the Court OVERRULES Petitioner‟s objection with respect to this portion
of the PF&R.
The Court observes, however, that Petitioner asserts in his Petition for Appeal to the
WVSCA (which document was filed on the docket as an exhibit to his objections) that on July
29, 2013, the Circuit Court of Kanawha County, “summarily denied the petition without
appointing counsel, affording petitioner an evidentiary hearing, or making the requisite finding
of facts, and conclusion of law” and “dismissed the petition without prejudice.” (ECF 16-2 at 7.)
The Circuit Court‟s decision is not part of the record, and although every indication in the record
is that this second petition was adjudicated and not dismissed for not being “properly filed,” the
Court cannot definitively conclude that this is the case, nor can the Court clearly conclude that
the appeal of that denial, which is currently pending, was properly filed so as to toll the statute of
limitations. See, e.g., Escalante v. Watson, 488 F. App‟x 694, 697 (4th Cir. 2012) cert. denied,
133 S. Ct. 951 (2013) (“[J]ust because [an] application is pending, does not mean that it was
properly filed. For example, if an application is erroneously accepted by the clerk without the
requisite filing fee, it will be pending, but not properly filed.”) (citation omitted); Harper, 2013
WL 285412, at *7 n.5 (noting that amended petitions appeared to have been deemed as timely by
19
the state circuit court where the court ordered respondent to file a response to the petition);
Adams v. McBride, 3:06-cv-0382, 2009 WL 3187209, at *1 (S.D. W. Va. Sept. 30, 2009)
(magistrate judge order granting stay and holding petitioner‟s federal habeas petition in abeyance
where it seemed clear that dismissal would undoubtedly result in petitioner‟s inability to timely
seek federal habeas relief).
Accordingly, the Court will entertain a motion for reconsideration from Petitioner with
respect to whether a stay and abeyance is appropriate based on the issue of whether his second
state habeas petition was dismissed for not being properly filed, and, therefore, did not toll the
statute of limitations under 2244(d)(2), or that he has reasonable confusion such as to constitute
good cause about whether his petition for appeal to the WVSCA will be timely or otherwise
properly filed. Such motion may not exceed seven (7) pages, may include relevant exhibits, and
must be filed with the Court no fewer than 28 days of the date of this Order.
IV.
CONCLUSION
For these reasons, the Court ADOPTS IN PART the PF&R to the extent that it is
consistent with this Opinion, OVERRULES IN PART Petitioner‟s Objections, GRANTS
Respondent‟s motion to dismiss for failure to exhaust state court remedies [ECF 9], DENIES
WITHOUT PREJUDICE Petitioner‟s motion for partial summary judgment [ECF 12],
DENIES Petitioner‟s motion to expand the record [ECF 6], DENIES Petitioner‟s request to hold
this matter in abeyance, subject to the above-described motion for reconsideration, and FINDS
that Petitioner has abandoned his request to sever his exhausted claims and proceed solely on
those claims.
Accordingly, the Court DISMISSES WITHOUT PREJUDICE Petitioner‟s
section 2254 petition pending exhaustion of Petitioner‟s state court remedies.
The Court has also considered whether to grant a certificate of appealability. See 28
20
U.S.C. § 2253(c). A certificate will be granted only if there is “a substantial showing of the
denial of a constitutional right.” Id. at § 2253(c)(2). 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. 437, 484
(2000); Rose v. Lee, 252 F.3d 676, 683−83 (4th Cir. 2001). The Court concludes that the
governing standard is not satisfied in this instance.
Pursuant to Rule 11(a) of the Rules
Governing Proceedings Under 28 U.S.C. § 2254, Petitioner may not appeal the Court‟s denial of
a certificate of appealability, but he may seek a certificate from the court of appeals under
Federal Rule of Appellate Procedure 22. The Court thus DENIES a certificate of appealability.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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March 31, 2014
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