Walton v. Ballard

Filing 71

MEMORANDUM OPINION AND ORDER ADOPTING the 64 Proposed Findings and Recommendation, OVERRULING the 68 Objections, GRANTING Respondent's 56 Motion for Summary Judgment, DENYING Petitioner's 1 Petition for a Writ of Habeas Corpus, and DISMISSING this case from the docket of the Court. Signed by Judge Thomas E. Johnston on 3/30/2018. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TONY J. WALTON,
Petitioner,
v.

CIVIL ACTION NO. 2:15-cv-11423

DAVID BALLARD,
Warden
Respondent.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Tony J. Walton’s (“Petitioner”) petition pursuant to 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody (“§ 2254 Petition”), (ECF No. 1),
and Respondent’s Motion for Summary Judgment, (ECF No. 56). On March 24, 2017, this action
was re-referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed
findings and recommendations for disposition (“PF&R”). (ECF No. 32.) On November 20,
2017, Magistrate Judge Eifert filed her PF&R, (ECF No. 64), recommending that this Court grant
the Motion for Summary Judgment, and deny and dismiss the § 2254 Petition. Objections to the
PF&R were due by February 5, 2018, and Petitioner timely filed objections on December 14, 2017
(“Objections”). 1 (ECF No. 68.)

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Petitioner contemporaneously filed a Motion to Exceed the Page Limitation with his Objections. (ECF No. 67.)
The Court GRANTS the motion and will consider Petitioner’s objections in their entirety.

For the reasons discussed herein, the Court OVERRULES the Objections, ADOPTS the
PF&R, GRANTS the Motion for Summary Judgment, DENIES Petitioner’s Petition for a Writ of
Habeas Corpus, and DISMISSES this case from the docket of the Court.
I. BACKGROUND
On December 11, 2009, Petitioner was found guilty of one count of first-degree robbery
and one count of assault during the commission of a felony after a jury trial in the Circuit Court of
Fayette County, West Virginia. (ECF No. 13-1 at 384.) On January 26, 2010, Petitioner was
sentenced to 50 years’ imprisonment for the robbery and 2 to 10 years’ imprisonment for the
assault. (ECF No. 13-2 at 24.) The complete factual and procedural history of Petitioner’s direct
appeal and habeas proceeding in state court, as well as a 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. Petitioner, in
his Objections, concedes the accuracy of this history. (See ECF No. 68 at 1.) As such, the Court
adopts the factual and procedural history as set forth in the PF&R. The Court will provide a
discussion of any relevant facts from Petitioner’s original criminal case as necessary throughout
this opinion to resolve Petitioner’s objections. The § 2254 Petition claims the following grounds
for relief:
1. Actual Innocence – “There was overwhelming evidence to prove that Petitioner
was innocent of the robbery charges against him that were not used in the
defense of Petitioner. . . . [I]t is crystal clear that if the evidence was used
properly in the defense of Petitioner, it is more likely than not, that no
reasonable juror would have convicted Petitioner.”
2. Ineffective Assistance of Counsel – Defense Counsel’s inexperience and the
actions taken or lack thereof by counsel resulted in ineffective assistance of
counsel, violating Petitioner’s rights under the Sixth Amendments.
3. Denial of Fair and Impartial Jury – Defense Counsel’s failure to make
objections during voir dire and connections between jurors and the prosecution
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and interested parties denied Petitioner of his constitutional right to a fair and
impartial jury violating the Fifth and Fourteenth Amendments.
4. Use of Lineup Photo – It was a violation of Defendant’s rights and the Fifth and
Fourteenth Amendments when the State used the photo lineup to identify
Petitioner, as there was no foundation for the admission of the photo. Defense
Counsel also failed to object to the admission.

5. Improper Jury Instruction – “An erroneous instruction given by the trial judge
[regarding intimidation and retaliation against jurors and witnesses] deprive[d]
petitioner of his federal constitution, a right to a fair trial . . . .”
6. Denial of the Right to a Jury of One’s Peers – “. . . [T]here was no people of
color on the panel to choose from . . . . The town . . . where petitioner went to
trial is well known to be a racist town . . . .”
7. Ineffective Assistance of Appeal Counsel – “Appeal counsel . . . did not consult
him once while preparing petitioner appeal. There were errors by trial court
that needed discussed.”
(ECF No. 1-1.) The PF&R thoroughly analyzes each of Respondent’s claims as argued in the
motion for summary judgment, and it recommends that this Court grant Respondent’s Motion for
Summary Judgment, (ECF No. 56), deny Petitioner’s Petition for Writ of Habeas Corpus, (ECF
No. 1), and dismiss this matter from the Court’s docket.
II. LEGAL STANDARDS
A. Review of Magistrate Judge’s Findings and Recommendations
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court must determine de novo
any part of a magistrate judge’s disposition to which a proper objection has been made. The Court
is not required to review, under a de novo or any other 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). Failure to file timely
objections constitutes a waiver of de novo review and the petitioner’s right to appeal this Court’s
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order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not
conduct a de novo review when a party “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).
B. Habeas Corpus Standard of Review
A federal court may grant habeas relief for a state prisoner “only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). “Therefore, when a petitioner’s claim rests solely upon an interpretation of state case
law and statutes, it is not cognizable on federal habeas review.” Weeks v. Angelone, 176 F.3d
249, 262 (4th Cir. 1999), aff’d, 528 U.S. 225 (2000).
Section 2254(d), as modified by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), provides for a deferential standard of review to be applied to any claim that was
“adjudicated on the merits” in state court proceedings. In such a case, a federal court may grant
habeas relief only if the adjudication of the claim in state court
(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.
28 U.S.C. § 2254(d).
Section 2254(d)(1) describes the standard of review to be applied to claims challenging
how the state courts applied federal law. “A federal habeas court may issue the writ under the
‘contrary to’ clause if the state court applies a rule different from the governing law set forth in
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[Supreme Court] cases, or if it decides a case differently than we have done on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). “The court may grant relief
under the ‘unreasonable application’ clause if the state court correctly identifies the governing
legal principle from our decisions but unreasonably applies it to the facts of the particular case.”
Id.

The latter inquiry focuses on whether the state court’s application of clearly established

federal law was “unreasonable,” as distinguished from whether it was “correct.” See Renico v.
Lett, 559 U.S. 766, 773 (2010); Bell, 535 U.S. at 694; Williams v. Taylor, 529 U.S. 362, 410 (2000).
Section 2254(d)(2) describes the standard to be applied to claims challenging how the state
courts determined the facts. “[A] determination of a factual issue made by a State court [is]
presumed to be correct,” and the petitioner has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1).

“The phrase

‘adjudication on the merits’ in section 2254(d) excludes only claims that were not raised in state
court, and not claims that were decided in state court, albeit in a summary fashion.” Thomas v.
Taylor, 170 F.3d 466, 475 (4th Cir. 1999); see also Harrington v. Richter, 562 U.S. 86, 98 (2011)
(recognizing that § 2254(d) applies even if the state court issued a summary decision
unaccompanied by an explanation). The state court determination will be upheld so long as
“fairminded jurists could disagree” on its correctness. Yarbrough v. Alvarado, 541 U.S. 652, 664
(2004).
C. Summary Judgment
Federal Rule of Civil Procedure 56 governs motions for summary judgment. That rule
provides, in relevant part, that summary judgment should be granted if “there is no genuine issue
as to any material fact.” Summary judgment is inappropriate, however, if there exist factual issues

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that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and
a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for
the nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010). When construing such factual issues, the Court must view the evidence
“in the light most favorable to the [party opposing summary judgment].” Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970). “When faced with cross-motions for summary judgment, the
court must review each motion separately on its own merits to determine whether either of the
parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th
Cir. 2003) (internal quotation marks omitted) (citation omitted). The court will consider each
motion individually, “tak[ing] care to resolve all factual disputes and any competing rational
inferences in the light most favorable to the party opposing that motion.” Id. (internal quotation
marks omitted) (citation omitted). The nonmoving party may not rest on the pleadings alone and
must show that specific material facts exist by offering more than a mere “scintilla of evidence”
in support of his position. Anderson, 477 U.S. at 252.
III. DISCUSSION
Petitioner lodges six specific objections to the PF&R and asserts that Magistrate Judge
Eifert failed to address two contentions raised in Respondent’s Motion for Summary Judgment.
The Court ADOPTS and AFFIRMS the PF&R, without de novo review, in regard to all of the
claims which Petitioner has failed to object to. In regard to the claims that Petitioner has lodged
his objections, the Court will now conduct a de novo review.
A. Ineffective Assistance of Counsel
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Petitioner’s specific objections to the PF&R concern the alleged ineffective assistance of
counsel (“IAC”) by his Defense Counsel at the trial level. These objections relate to the PF&R’s
conclusion that Respondent is entitled to summary judgment as to Ground 2 of the § 2254 Petition.
(See ECF No. 1-1 at 14–24.)
Petitioner must overcome two layers of deference for the Court to sustain his IAC
objections. First, the Supreme Court’s pronouncement in Strickland accords to his counsel a
“highly deferential” level of judicial scrutiny. Strickland v. Washington, 466 U.S. 668, 689
(1984). Courts “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance . . . .”

Id.

The burden falls to Petitioner to

demonstrate otherwise. See id. at 690 (“A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are alleged not to have been the result
of reasonable professional judgment. The court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.”). If counsel made a “strategic choice” after “thorough investigation of law
and facts,” the act is “virtually unchallengeable.” Id. Acts or omissions not determined to be
strategic—either because they were not adequately informed or they were not conscious decisions
at all—are still analyzed by an objective reasonableness standard. See Roe v. Flores-Ortega, 528
U.S. 470, 481 (2000); Kimmelman v. Morrison, 477 U.S. 365, 375, 386 (1986).
If the reviewing court determines under this deferential standard that counsel’s action fell
outside the accepted range of professionally reasonable conduct, the challenger must also show
that he was prejudiced by the errors—that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

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U.S. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the
outcome.

Id.

In addressing IAC claims, courts may address either issue—counsel’s

performance or prejudice from the alleged error—first, since a finding adverse to the petitioner on
either issue is dispositive. See id. at 697 (“There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes an
insufficient showing on one. . . . If it is easier to dispose of [the] claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.”).
In addition to this deferential standard, § 2254 petitioners making IAC claims must show
that the reviewing state court applied Strickland unreasonably. See Elmore v. Ozmint, 661 F.3d
783, 856–66 (4th Cir. 2011). The Supreme Court has noted that “[t]he standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted) (citations omitted)
(noting that “[s]urmounting Strickland’s high bar is never an easy task” and that “[e]stablishing
that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more
difficult”).

“When § 2254(d) applies, the question is not whether counsel’s actions were

reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. Ultimately, “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
1. Cross-Examination of Victim
First, Petitioner objects to the PF&R’s conclusion “that the circuit court’s decision that

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Petitioner’s trial counsel was not constitutionally ineffective in addressing the victim’s
‘inconsistent’ identifications of Petitioner at trial was not contrary to, or an unreasonable
application of, clearly established federal law.” (See ECF No. 64 at 13–15.) The PF&R finds
that Respondent is entitled to summary judgment on this ground. (Id. at 15.)
Petitioner originally raised this argument in his state habeas corpus petition, (ECF No. 137 at 10.), for which the Circuit Court of Fayette County conducted an evidentiary hearing that
included testimony from Petitioner’s trial counsel, Elizabeth Kearney Campbell. (See ECF No.
13-9.) In its ruling, the circuit court notes that Petitioner framed his argument on the basis that
his counsel “did not put on any evidence about discrepancies in the descriptions;” an assertion that
was “blatantly false.” (See ECF No. 13 at 60.) The circuit court reviewed the transcript of the
underlying trial and found that trial counsel “subjected [the victim] to considerable cross
examination on the issue of inconsistences in her descriptions of the attacker.”

(See id.)

Furthermore, regarding trial counsel’s use of the inconsistent descriptions in the 911 tape, the
circuit court found that trial counsel made a “strategic and tactical move” and “did a reasonably
adequate job of attempting to exploit these slight discrepancies.” (See id. at 60–61.) The circuit
court ultimately determined that trial counsel’s performance was not “deficient under an objective
standard of reasonableness.” (See id. at 61.) On appeal, the Supreme Court of Appeals of West
Virginia (“SCAWV”) found that there was no error or abuse of discretion by the circuit court and
adopted the circuit court’s “well-reasoned findings and conclusions of law . . . .” (See ECF No.
13-8.) Accordingly, 28 U.S.C. § 2254(d) applies, and the question becomes whether the state
court’s adjudication of Petitioner’s cross-examination claim “was an unreasonable application” of
Strickland or involved an unreasonable determination of the facts in light of the evidence

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presented. See § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011) (“The rule
and analytical framework announced by the Supreme Court in Strickland ‘unquestionably qualifies
as “clearly established” federal law under § 2254(d).’” (quoting Frazer v. South Carolina, 430
F.3d 696, 703 (4th Cir. 2005))).
Petitioner objects on the basis that “[c]ounsel failed to enter evidence of [the] victim’s
inconsistent descriptions.” (See ECF No. 68 at 2–13.) This Court is in concurrence with the
preceding courts that Petitioner’s objection is blatantly false.

This is demonstrated by the

following passages from the trial transcript:
BY MS. KEARNEY [CAMPBELL]:
Q Can I first start off with asking, do you remember how many descriptions you
gave to law enforcement as they were investigating this or –
THE COURT: Or 911?
BY MS. KEARNEY [CAMPBELL]
Q To 911 and the investigating officers, do you remember how many times they
made you describe what was going on?
A No, ma’am.
Q We heard testimony today from law enforcement that you described your attacker
as a light-skinned black man with a gray hoodie, sweat pants and gloves. Is that
correct?
A Yes
Q You also had the opportunity to describe to the 911 Center in your phone call to
them – after the attack happened, you had an opportunity and they asked you to
describe your assailant. Do you remember that?
A I remember talking to the 911 Center that day.
Q Okay. And they asked you when -- if you could describe your attacker, and you
did so. And I have a copy of the transcription of the 911 call. And if I could just
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refresh your memory, I will let you know what you reported to the 911 Center, and
you can tell me if that’s accurate. Okay?
A Yes.
Q Okay. The 911 Center asked you, “Is there anything you can tell me about this
black male?” And you replied to them, “He is very, very black. Wore jersey
gloves, brown-looking things.” Do you remember making that statement? Is it fair
to say that you made that to the 911 Center?
A Ma’am, I’m honestly -- I don’t -- I’m not sure.
Q Okay. All right. I know it happened right after the attack, so I understand where
your memory might not be as good because of the trauma. But would you disagree
with me that
MR. PARSONS: Your Honor, she can’t disagree if she doesn’t remember making
the statement.
THE COURT: Well, I’m going to overrule the objection. If the 911 tape has you
saying that, ma’am, do you dispute that you told 911 that?
THE WITNESS: No, sir. That day was just a it was -- it was not a good day I –

(ECF No. 13-1 at 184–86.) Trial counsel clearly brought the inconsistent descriptions given by
the victim to the attention of the jury by eliciting the response during cross-examination and
addressing them again during closing arguments, (see id. at 352–54). However, Petitioner further
asserts that “if the 911 tape would have been entered into evidence it would have seriously called
the victims [sic] description into question which would have caused the reasonable doubt the jury
needed to acquit.” (See ECF No. 68 at 2.) Petitioner attempts to argue that trial counsel’s actions
were unreasonable and prejudicial, and that trial counsel’s omission of admitting the 911 tape into
evidence implicates Strickland, but his argument fails. The method that counsel chooses to use
evidence in a trial falls squarely within the highly deferential standard and strong presumption that
such conduct falls within the wide range of reasonable profession assistance provided to counsel
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under Strickland. Strickland, 466 U.S. 668, 689 (1984). Here, trial counsel’s decision to not use
the 911 tape, but cross-examine the victim regarding the statements made on the 911 tape, was
clearly a strategic choice by trial counsel, which the Strickland court has found as virtually
unchallengeable. Id. at 690. Trial counsel testified during her evidentiary hearing that she made
a conscious choice not to play or enter the 911 tape into evidence because she believed that playing
the emotionally charged tape, which included clips of the victim screaming and crying, could
detrimentally affect Petitioner. (See ECF No. 13-9 at 43–45, 71–73.) Further, trial counsel
testified that, through discussion with Petitioner, the focus of their case would be primarily upon
his defense in alibi and the forensic evidence and she wanted to avoid vigorously cross-examining
a witness, the victim, who appeared to be very frail and could end up hurting Petitioner’s case.
(Id. at 39–44.)

The Court does not find that trial counsel acted outside the wide range of

professionally competent assistance.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented.

See 28 U.S.C. § 2254(d).

Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s cross-examination of the victim.
2. Failure to Investigate Evidence
Second, Petitioner objects to the PF&R’s conclusion that “Petitioner’s trial counsel was
not constitutionally ineffective in not forensically investigating the physical evidence or
challenging the state’s failure to do so is not contrary to, or an unreasonable application of, clearly
established federal law.” (See ECF No. 64 at 15–20.) The PF&R finds that Respondent is

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entitled to summary judgment on this ground. (Id. at 19–20.)
The circuit court’s analysis of the claim began with Chief Deputy Canterbury’s testimony
at trial in which he stated that he observed parts of a broken mirror and bloodstain on the floor at
the crime scene, in addition to a possible footprint going through the bloodstain (which was
illustrated in State’s Exhibit 10). (ECF No. 1-2 at 38.) The circuit court then noted that the
victim testified that she was pushed into mirrors, which resulted in her bleeding onto the floor.
(Id. at 38–39.) The circuit court ultimately concluded that the smeared bloodstain failed to show
any identifiable footprints, and thus in conjunction with the testimony of the victim and Chief
Deputy Canterbury, did not render Petitioner’s trial counsel deficient under an objective standard
of reasonableness in failing to introduce evidence of blood samples or shoe size. (Id.)
As to Petitioner’s claim regarding counsel’s investigation of the bloodstain, Petitioner
objects on the basis that trial counsel should have investigated the bloodstain for exculpatory
evidence because “Petitioner is innocent of this crime,” and a proper investigation would have
shown as such. (See ECF No. 68 at 13–19.) Under Strickland, counsel “has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary. . . . [A] particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” 466 U.S. at 691. If counsel “conducts a reasonable investigation of law and facts
in a particular case, his strategic decisions are ‘virtually unchallengeable.’” Powell v. Kelly, 562
F.3d 656, 670 (4th Cir. 2009) (quoting Strickland, 466 U.S. at 688). To prevail on an IAC claim
based on a failure to investigate, a petitioner must specify “what an adequate investigation would
have revealed . . . .” Bassette v. Thompson, 915 F.2d 932, 940–41 (4th Cir. 1990).

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Here, Petitioner’s objection is largely based on speculation. Petitioner argues that it is
possible that the testing could have shown that the bloodstain or footprint did not belong to the
victim or Petitioner, thus proving Petitioner’s innocence. (ECF No. 68 at 17.) The victim stated
the bloodstain at the scene of the crime came from her head wound. (ECF No. 13-1 at 170, 173.)
It is reasonable in light of the circumstances that based on this testimony that trial counsel would
not find that testimony to be false, especially under the high standard of deference provided to
counsel’s judgments regarding investigation. No sufficient evidence exists that would have
allowed an investigation regarding the shoeprint. Further, Petitioner has not suggested, nor can
he, what an investigation may have revealed.
Additionally, Petitioner argues that trial counsel should have questioned and impeached
the investigating officers for their failure to collect and preserve possible exculpatory evidence.
(See ECF No. 68 at 18–19.) Petitioner jumps on the fact that trial counsel admitted during the
circuit court hearing that in hindsight she should have raised the issue of the police’s failure to
collect physical evidence or perform any forensic testing at the scene of the crime. (Id.; ECF No.
13-9 at 58.) However, the Strickland court clearly addressed hindsight analysis:
Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.
Strickland, 466 U.S. at 689 (1941) (internal citations omitted). Furthermore, as noted above, if
counsel made a “strategic choice” after “thorough investigation of law and facts,” the act is
“virtually unchallengeable.” Id at 690. Acts or omissions not determined to be strategic—either
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because they were not adequately informed or they were not conscious decisions at all—are still
analyzed by an objective reasonableness standard. See Roe v. Flores-Ortega, 528 U.S. 470, 481
(2000); Kimmelman v. Morrison, 477 U.S. 365, 375, 386 (1986).
As noted, trial counsel’s acceptance of the statements by the victim and Chief Deputy
Canterbury were not an unreasonable strategic decision in lieu of a possible investigation. Trial
counsel’s strategic decision to focus on the inconsistent statements instead of this evidence does
not amount to unreasonableness under an objective standard. The law, as noted, is extremely
deferential to the decisions trial counsel may make in the course of their professional assistance
and this Court should not second-guess trial counsel’s professional judgment after a finding that
trial counsel acted reasonably based on an objective standard.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented.

See 28 U.S.C. § 2254(d).

Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s failure to investigate.
3. Photo Lineup Identification
Third, Petitioner objects to the PF&R’s conclusion that the use of a photo line up to identify
Petitioner was not contrary to, or an unreasonable application of, clearly established federal law
and that trial counsel’s failure to object to the admission of the photographic line-up was not
ineffective assistance of counsel. (See ECF No. 64 at 20–26.) The PF&R finds that Respondent
is entitled to summary judgment on this ground. (Id. at 26.)
The circuit court began by reviewing the case law under West Virginia law and the

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requirements thereof regarding the use of a photographic line-up for an out-of-court identification.
(ECF No. 1-2 at 25.) In applying the law to the facts of the case, the circuit court determined that
the photographic line-up used in Petitioner’s case was not suggestive and was consistent with
applicable law. (Id. at 25–26.) The circuit court then turned to Petitioner’s argument against
admission of the out-of-court identification at trial. The circuit court applied the test established
in Neil v. Biggers, 409 U.S. 188, 199–200 (1972), to evaluate “whether under the ‘totality of the
circumstances’ the identification was reliable” if the confrontation procedure was suggestive.
(ECF No. 1-2 at 33–36.) Upon analysis of the factors presented in Biggers, the circuit court found
that Petitioner’s trial counsel could have objected to the foundation for the admission of the
photographic line-up and the identification of Petitioner through the testimony of the person who
prepared the photographic line-up, as opposed to the officer who conducted the actual
identification, as hearsay testimony. (Id. at 26–36.) On this basis, the circuit court determined
that trial counsel’s failure to object to the admission of the photographic line-up and out-of-court
identification of Petitioner was deficient under an objective standard of reasonableness and thus
met the first Strickland prong. (Id. at 28.) However, the circuit court ultimately determined that
there was not a reasonable probability that the result of the proceeding would have been different
“but for” trial counsel’s error. (Id.) The circuit court based its decision on the victim pointing
out the Petitioner and identification of Petitioner in the courtroom as the man who attacked her.
(Id. at 30.)

The circuit court further noted that the officer who witnessed the victim’s

identification of Petitioner from the photographic line-up was present at trial and available to
testify and the victim testified that the State’s Exhibit 21 was the photographic line-up that she was
shown and pointed to the photograph of Petitioner that she identified on that earlier date. (Id. at

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28–31.)
Petitioner objects on the basis that allowing the admission of the testimony is a violation
of his constitutional rights and prejudiced him from being acquitted. (See ECF No. 19–27.)
However, for a court to find that counsel acted in violation of Strickland, a defendant must enable
a court to determine under this deferential standard that counsel’s action fell outside the accepted
range of professionally reasonable conduct, and the challenger must show that he was prejudiced
by the errors—that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Here, while
Petitioner asserts that the admission was in violation of constitutional standards and that the circuit
court found that trial counsel’s actions were unreasonable under Strickland, Petitioner fails to make
a showing of prejudice.

The victim testified at trial that the State’s Exhibit 21 was the

photographic line-up that she was shown on the day of the robbery and she pointed to the
photograph of Petitioner that she previously identified. (ECF No. 13-1 at 174.) The victim also
identified Petitioner in the courtroom as the man who attacked her. (Id. at 178.) Petitioner’s
failure to make a showing of prejudice and the victim’s ultimate identification of Petitioner in the
courtroom as the man that attacked her are enough to persuade this Court that there was no
prejudice from the alleged error by trial counsel.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented.

See 28 U.S.C. § 2254(d).

Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s failure to object to the admission of the photo line-up.
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4. Detective Sizemore’s Testimony
Fourth, Petitioner objects to the PF&R’s conclusion that “Petitioner’s trial counsel was not
constitutionally ineffective by not objecting to Detective Sizemore’s testimony” and that
“Petitioner’s additional claims that his trial counsel was ineffective because she did not perform
additional investigation, cross-examination, or offer alterative theories to rebut Detective
Sizemore’s testimony are procedurally defaulted and to the extent that they are not procedurally
defaulted, those claims are also without merit.” (See ECF No. 64 at 26–38.) (emphasis in
original). The PF&R finds that Respondent is entitled to summary judgment on this ground. (Id.
at 38.) As only one of these claims has been exhausted, the Court will address them separately.
a. Lack of Objection to Expert Testimony
On habeas review, the circuit court agreed with Petitioner’s trial counsel’s testimony that
she did not consider Detective Sizemore’s testimony to be expert testimony. (ECF No. 1-2 at 40–
42.) Even as such, the circuit court noted that in light of Detective Sizemore’s testimony
regarding his qualifications, the court would have likely qualified him as an expert over any
objection by trial counsel. (Id. at 43.) The circuit court found that allowing Detective Sizemore
to testify “was a strategic decision to . . . in an attempt to lend credence to the defense’s overarching
theory that the police had arrested the wrong person.” (Id. at 42.) The circuit court also found
that Petitioner failed to show any reasonable probability that an objection to the testimony would
have resulted in a different outcome. (Id. at 43.)
Petitioner objects on the basis that trial counsel should have objected to the testimony
provided by Detective Sizemore because “he was a ‘lay witness’ giving ‘expert’ testimony and
was never qualified an expert by the court.” (See ECF No. 68 at 30.) Petitioner maintains that

18

this failure to object gave credibility to Detective Sizemore’s misleading testimony. (See id.)
Trial counsel testified at the evidentiary hearing that it might have been better for her to seek a
pretrial hearing to challenge Detective Sizemore’s qualifications and testimony as a way to “trip
him up” or “shake him up as a witness” prior to the trial. (ECF No. 13-9 at 51–52.)
Once again, it is not the duty of this Court to lend its insight through hindsight. It is the
duty of this court to apply the Strickland standard and make an inquiry into whether counsel acted
outside the wide range of professionally competent assistance, based on the circumstances as a
whole. See Strickland, 466 U.S. at 690. If counsel made a “strategic choice” after “thorough
investigation of law and facts,” the act is “virtually unchallengeable.” Id. Trial counsel testified
that it was her strategy to focus on the lack of forensic evidence linking Petitioner to the crime.
(See ECF No. 13-9 at 51–52.) Trial counsel put this strategic plan into action during her crossexamination of Detective Sizemore and by calling an expert in forensic science to testify. (See
ECF No. 13-1 at 136–42, 277–80.) Trial counsel’s actions are clearly a strategic choice, and are
not unreasonable or outside the wide range of professionally competent assistance, making her
actions virtually unchallengeable.

Furthermore, Petitioner fails to provide any evidence of

prejudice from trial counsel’s failure to object, especially in light of the circuit court finding that
it ultimately would have found Detective Sizemore to be qualified as an expert if the State had so
moved.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented.

See 28 U.S.C. § 2254(d).

Accordingly, the Court OVERRULES Petitioner’s

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objection as to IAC based on trial counsel’s failure to object to the testimony of Detective
Sizemore.
b. Lack of Investigation of Green Fluorescent Spots
Petitioner claims that his trial counsel was ineffective because she did not perform
additional investigation, cross-examination, or offer alterative theories to rebut Detective
Sizemore’s testimony, and objects to the PF&R’s conclusion that these claims are without merit.
(See ECF Nos. 1-1 at 7–17; 68 at 27–33.) The Court will choose to review these claims on the
merits only as Petitioner failed to exhaust these claims when he failed to raise them in his state
habeas proceeding.
Petitioner ultimately wanted trial counsel to investigate the pepper spray to see if it
contained a certain ingredient that would have explained the fluorescence on Petitioner’s face
during the investigation. (See ECF Nos. 1-1 at 7–17; 68 at 27–33.) He asserts that trial counsel
should have asked Detective Sizemore “whether this information was confirmed by the company
who sold mace” and investigated “these claims about the marking dye by contacting the company
that produced the mace.” (See ECF No. 68 at 30.) Petitioner wanted trial counsel to seize “the
opportunity to contact the company to be ‘sure’ of the mace’s contents concerning the marking
dye” because he believed that the fluorescence discovered on his face could have been the result
of an alternative substances such as soap or gas fumes from his four-wheeler.
1 at 7–8.)

(Id.; ECF No. 1-

Petitioner also asserts that trial counsel should have cross-examined Detective

Sizemore about other substances that could have caused the fluorescence. (ECF No. 1-1 at 7–8.)
As noted above, under Strickland, counsel “has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary. . . . [A]

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particular decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” 466 U.S. at 691.
To prevail on an IAC claim based on a failure to investigate, a petitioner must specify “what an
adequate investigation would have revealed . . . .” Bassette v. Thompson, 915 F.2d 932, 940–41
(4th Cir. 1990).
Petitioner’s entire argument is based on speculation. Petitioner does not argue that the
pepper spray contained marking dye or that it did not. He merely believes that trial counsel should
have called the company that made the mace to make sure Detective Sizemore was telling the
truth. (See ECF No. 68 at 30.) An investigation might have revealed that there was no dye in
the pepper spray, but Petitioner provides no evidence that such a conclusion is likely. While it
may have been prudent for trial counsel to investigate whether there was dye in the pepper spray,
trial counsel took a different strategic path to discredit the testimony of Detective Sizemore, as
discussed above. It is not the duty of this Court to second-guess the strategic decision made by
counsel.

Strickland, 466 U.S. at 689.

This Court is to determine whether counsel acted

unreasonable, while according “a heavy measure of deference to counsel’s judgments.” Id. at
691. In light of the heavy deference given to counsel’s judgments, the Court does not find that
counsel’s decisions were unreasonable in all of the circumstances.
Accordingly, the Court OVERRULES Petitioner’s objection regarding trial counsel’s
failure to investigate the pepper spray.
5. Jury Bias
Fifth, Petitioner objects to the PF&R’s conclusion that “the circuit court’s decision that
Petitioner’s trial counsel was not constitutionally [deficient] in responding to what Petitioner

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contends was indicia of jury bias was not contrary to, or an unreasonable application of, clearly
established federal law.” (See ECF No. 64 at 47–52.) Specifically, this relates to the trial judge
stating on the record that a juror approached the court reporter during the lunch hour recess and
advised that the juror knew some of the spectators in the courtroom and wanted to know if it was
something that should be disclosed, (ECF No. 13-1 at 119), and during jury deliberation, the jury
foreman provided a note to the circuit court stating that the same juror who previously expressed
recognizing spectators in the courtroom was “now afraid of repercussions from the family” and
the jury was “unable to move forward at this time.” (ECF Nos. 1-1 at 27, 1-2 at 50, 13-1 at 370,
58 at 16, 58-1 at 2). The PF&R finds that Respondent is entitled to summary judgment on this
ground. (See ECF No. 64 at 52.)
On habeas review, the circuit court first addressed the juror knowing a spectator in the
gallery and trial counsel’s response to this disclosure. The circuit court found that recognition of
a spectator in a courtroom is not enough to disqualify that juror from sitting on the jury. (ECF
No. 12 at 46–47.) Furthermore, the circuit court did not find that this recognition altered the
juror’s affirmation to review the evidence without bias or prejudice based upon the spectator
recognition. (Id. at 48.) Upon these bases, the circuit court determined that Petitioner’s trial
attorney did not act deficiently by failing to act upon the juror’s statement. The circuit court even
entertained the hypothesis that had trial counsel failed to act when she should have, Petitioner
failed to show that but for her failure, there was a reasonable probability that the results of the
proceeding would have been different. (Id. at 49–50.) Concerning the note by the foreman, the
circuit court began its address of the argument by noting that trial counsel moved for a mistrial and
objected to a curative instruction, and moved for a new trial during sentencing as well. (ECF No.

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1-2 at 50–51.) While Petitioner argued that trial counsel should have asked for a voir dire instead
of a mistrial, the circuit court noted that it is not the duty of the circuit court to determine whether
a different approach should have been used by counsel based on hindsight. (Id. at 51.) Rather,
the circuit court noted that the standard under Strickland is based on whether counsel acted outside
the wide range of professionally competent assistance, which the circuit court found trial counsel
did not. (Id.) (emphasis in original).
As this Court has already noted, it is not the duty of this Court to apply its own
determination of what the appropriate course of action should have been for trial counsel. See
Strickland, 466 U.S. at 689 (1941). The standard for ineffective assistance of counsel does not
turn on a conclusion by this Court based on hindsight, but rather an inquiry into whether counsel
acted outside the wide range of professionally competent assistance, based on the circumstances
as a whole. Id. at 690. If counsel made a “strategic choice” after “thorough investigation of law
and facts,” the act is “virtually unchallengeable.” Id. To the extent that Petitioner objects to the
decisions of his counsel to not ask the trial court to conduct a voir dire of the juror, and move for
a mistrial instead of asking for a voir dire, it is a clear attempt to have the Court conduct an analysis
of trial counsel’s tactical decisions based on hindsight. Here, trial counsel did not act upon the
disclosure that a juror knew someone in the gallery.

The Court does not find this to be

unreasonable, especially in light of the small town in which the trial took place as noted by the
circuit court on habeas review, (ECF No. 1-2 at 47–48). Petitioner also fails to make any showing
that the juror’s recognition of someone in the gallery was prejudicial. Further, when viewing the
circumstances as a whole, the Court does not find it unreasonable or outside of the wide range of
professionally competent assistance that trial counsel moved for a mistrial at two proceedings and

23

objected to the curative instruction given by the trial judge instead of asking the trial judge to
conduct a voir dire of the jurors. The presumption in favor of counsel’s actions is very strong
and, in conjunction with the Strickland standard, this Court cannot find that trial counsel provided
ineffective assistance of counsel in her response to Petitioner’s claim of jury bias.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented.

See 28 U.S.C. § 2254(d).

Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s failure to request a voir dire.
6. Trial Counsel’s Inexperience
Petitioner’s last objection regarding IAC involves trial counsel’s inexperience. Petitioner
objects to the PF&R’s conclusion that Petitioner failed to “establish that his trial counsel’s
performance was constitutionally deficient, nor does he show a reasonable probability that her
actions affected the outcome of his trial.” (See ECF No. 64 at 57–59.)
On habeas review, the circuit court explained that the law does not require a certain level
of experience to establish IAC; instead, the law focuses on what a reasonable attorney would have
done under the circumstances based upon an objective standard. (See ECF No. 1-2 at 14.) The
circuit court ultimately found that Petitioner’s trial counsel “spent a significant amount of time
conducting a reasonable and adequate investigation of Petitioner’s case and the mere fact that
Petitioner’s jury trial was [her] first jury trial, as lead counsel, does not support a finding of
ineffective assistance of counsel.” (Id. at 15.)
The law is clear that experience is not the basis for determining whether trial counsel’s

24

actions provided ineffective assistance of counsel; instead, a court is to look at the attorney’s actual
performance. Kandies v. Polk, 385 F.3d 457, 469 n. 7 (4th Cir. 2004) (vacated on other grounds
by Kandies v. Polk, 545 U.S. 1137 (2005)). A court must determine whether the attorney’s
performance falls below “an objective standard of reasonableness.” Strickland, 466 U.S. at 687.
Here, Petitioner asserts that he was prejudiced because trial counsel did not provide effective
representation and should have removed herself from the case due to her lack of trial experience
and competence. (See ECF No. 68 at 42–47.)
As the Court has found above, Petitioner continues to assert various reasons as to why trial
counsel was ineffective, but has yet to provide sufficient evidence as such. This Court has yet to
find that based upon any of Petitioner’s objections trial counsel was ineffective under Strickland,
and it will not do so based upon her lack of experience either. Additionally, the circuit court
distinguished that this was not trial counsel’s first trial; it was her first jury trial as a lead attorney.
(ECF Nos. 1-2 at 14; 13-9 at 26.) Any finding that inexperience is by itself grounds for ineffective
assistance of counsel would have a chilling effect on young attorneys who are beginning their
courtroom experience.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented.

See 28 U.S.C. § 2254(d).

Accordingly, the Court OVERRULES Petitioner’s

objection as to IAC based on trial counsel’s lack of experience.
B. Trial Judge’s Handling of Potential Prejudice
Petitioner alleges that Magistrate Judge Eifert failed to address his concerns regarding

25

denial of an impartial jury and abuse of discretion by the trial court. (See ECF No. 68.) The
Court will address these concerns itself.
On habeas review, the circuit court determined even if bias and prejudice does present
itself, the trial court is in the best position to judge the sincerity of a juror’s pledge to abide by the
court’s instructions, and therefore it is within the trial court’s discretion to determine whether the
juror should be disqualified and that determination will not be disturbed upon appeal unless the
court clearly abused its discretion. (ECF No. 13-9 at 67.) The circuit court then turned to the
facts of the case at hand and found that the trial court assessed the potential for bias and prejudice
and determined that there was none on each occasion brought into question by Petitioner, but
addressed the jurors each time and provided a curative instruction to them. (Id. at 68–70.) The
circuit court determined that the juror’s fear of repercussions was only an obstacle to reaching a
unanimous decision, and that the trial court “took action that it deemed was necessary and
appropriate to ensure that the trial was fair for both parties.” (Id. at 70.) Finally, the circuit court
found that the trial court did not err when it gave the curative instruction because it was an
“accurate reflection of law and it was necessitated by the unusual circumstances that arose in
Petitioner’s case.” (Id. at 71–72.) The circuit court also determined that even if the trial court
erred by giving the curative instruction, it would only amount to ordinary trial error and would not
rise to the level that would implicate federal or state constitutional rights. (Id. at 72–73.)
Petitioner argues that he was denied an impartial jury and that the trial court abused its
discretion when the trial judge “failed to conduct a voir dire into the potential prejudice resulting
from a juror expressing fear of the ‘family’ during the ‘deliberation’ process which was brought
to the attention of the Court.” (Id. at 1, 47–52.) The facts surrounding the objections at hand are

26

set forth in detail in the PF&R, (ECF No. 64 at 47–50) and need not be repeated here. Petitioner
does not dispute the facts. (See ECF No. 68 at 1, 48.) As such, the Court adopts the facts as set
forth in the PF&R.
A defendant is entitled to impartiality under the Sixth and Fourteenth Amendments.
Witherspoon v. Ill., 391 U.S. 510, 518 (1968). “Due process requires that the accused receive a
trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362
(1966). Furthermore, jurors are presumed to be impartial and “the defendant bears the burden of
showing a strong possibility of juror bias.” Poynter v. Ratcliff, 874 F.2d 219, 221 (4th Cir. 1989);
Wells v. Murray, 831 F.2d 468, 472 (4th Cir.1987).
Here, Petitioner maintains that the actions by the juror in question were enough to show
bias and require a voir dire of each member of the jury. Concerning the individual juror, it is
extremely rare that prejudice would arise because of intimidation in the courtroom. United States
v. Babb, 369 F. App’x 503, 511 (4th Cir. 2010). Further, “due process does not require a new
trial every time a juror has been placed in a potentially compromising situation. Were that the rule,
few trials would be constitutionally acceptable.”

Smith v. Phillips, 455 U.S. 209, 217 (1982).

Both voir dire and protective instructions are available to trial judges as a means of safeguarding
juror impartiality, but they are not infallible. Id. Following the trial judge’s curative instruction,
the jury resumed their deliberations and returned a verdict. Even with the possibility of influence,
Petitioner fails to show that there was such a strong possibility of juror bias that the decision of the
trial judge should be overturned. Furthermore, in regard to the individual juror and the jury as a
whole, the trial judge did not abuse his discretion by not conducting voir dire of each juror. “Even
if improper influence is suggested, there is no requirement that the court conduct individualized

27

voir dire each time.” Babb, 369 F. App’x at 511. “Individual questioning, which may tend to
unsettle the jury, is only warranted in cases where there is a strong indication of bias or
irregularity.” Id. (citing United States v. Stafford, 136 F.3d 1109, 1112-13 (7th Cir. 1998)). As
noted, Petitioner has failed to show that there was a strong indication of bias. Furthermore,
Petitioner failed to provide any evidence, or even an inkling of indication, that the entire jury had
become tainted. Therefore, the actions of the trial judge were within the discretion provided to
him under the case law.
Pursuant to the standard in § 2254(d), the Court finds that the circuit court’s adjudication
of this claim did not result in a decision contrary to, or involve an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented. See 28 U.S.C. § 2254(d). Accordingly, the Court DENIES Petitioner’s claim and
OVERRULES his objection regarding the actions of the trial judge.
IV. CONCLUSION
For the reasons set forth above, the Court ADOPTS the PF&R, (ECF No. 64),
OVERRULES the Objections, (ECF No. 68), GRANTS Respondent’s Motion for Summary
Judgment, (ECF No. 56), DENIES Petitioner’s Petition for a Writ of Habeas Corpus, (ECF No.
1), and DISMISSES this case from the docket of the Court.
The Court has also considered whether to grant a certificate of appealability. See 28
U.S.C. § 2253(c). A certificate will be granted only if there is “a substantial showing of the denial
of a constitutional right.” § 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. See Miller–

28

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, 683–84 (4th Cir. 2001). Because Petitioner has not made a substantial
showing of the denial of a constitutional right in the § 2254 Petition and objections to the PF&R,
the Court DENIES a certificate of appealability. 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.
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 30, 2018