Jenkins v. Ballard
Filing
41
MEMORANDUM OPINION AND ORDER adopting the 36 Proposed Findings and Recommendation by Magistrate Judge; denying the petitioner's 15 Motion for Summary Judgment and 25 RENEWED Motion for Summary Judgment; granting the respondent's 18 Motion for Summary Judgment; denying the petitioner's 2 petition for a writ of habeas corpus by a person in state custody; and directing that this action is dismissed with prejudice and removed from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 9/25/2017. (cc: petitioner; counsel of record; any unrepresented parties; Judge Cheryl A. Eifert) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
HENRY CLAY JENKINS,
Petitioner
v.
Civil Action No.: 2:16-cv-06789
DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
Respondent
MEMORANDUM OPINION AND ORDER
Pending before the court are the petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed on July
28, 2016 and the motions for summary judgment filed by the
parties.
This action was previously referred to Cheryl A.
Eifert, United States Magistrate Judge, who, on May 2, 2017,
submitted her Proposed Findings and Recommendations (“PF&R”)
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Eifert recommends that the court deny
petitioner’s motion for summary judgment and renewed motion for
summary judgment, grant respondent’s motion for summary
judgment, deny the petition for habeas corpus, and dismiss the
case from the docket of the court.
On May 18, 2017, petitioner filed his objections to
the PF&R (“Objections,” ECF No. 37), which largely restate the
arguments Magistrate Judge Eifert had thoroughly addressed.
Nonetheless, the court considers them in turn below.
Considering that the claims petitioner raises were
adjudicated on the merits in the state courts, the pertinent
provision of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) (1996) states,
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(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).
First, petitioner challenges the causation standard,
arguing that the U.S. Supreme Court’s decision in Burrage v.
United States, 134 S. Ct. 881 (2014), interpreting the federal
Controlled Substances Act, should control the causation standard
under the West Virginia felony murder statute.
Petitioner
argues that the two statutes are closely similar in support of
his claim.
He argues further that the Burrage result, requiring
2
but-for causation, comports with the ordinary meaning of the
statutory text, which he claims West Virginia courts failed to
apply in his case.
As Magistrate Judge Eifert noted, the U.S.
Supreme Court’s interpretation of a federal statute is not
binding on state courts interpreting a similar state statute.
PF&R, at 36.
Accordingly, petitioner’s argument does not state
a colorable cause of action under 28 U.S.C. § 2254 since
petitioner does not argue any violation or misapplication of
federal law.
Second, petitioner again argues that evidence was
insufficient to convict him of felony murder, and integrates
some of his causation argument.
He argues that West Virginia’s
causation standard for felony murder, along with the available
evidence, resulted in a conviction in “violation of the founding
principles of due process.”
Objections, at 8.
For reasons
thoroughly discussed in the PF&R, at 38-39, his argument on
sufficiency of evidence lacks merit.
As the trier of fact, the
jury evaluated the evidence in the first instance in reaching
its conviction verdict.
State courts then found the evidence
sufficient to support the conviction, and the court agrees with
the PF&R that, in view of their decision, petitioner is unable
on that ground to satisfy the 28 U.S.C. § 2254(d) criteria for
relief.
In particular, petitioner does not explain what he
means by requiring 100 percent proof of (presumably but-for)
3
causation and why such proof is, in his view, a predicate for
observing the requirements of due process under the Fourth and
Fourteenth Amendments.
Objections, at 8.
The United States
Supreme Court has stated that “the relevant question [in a
habeas review of the sufficiency of evidence] is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The court agrees
with the PF&R that the question is readily answered in the
affirmative.
Third, petitioner again argues ineffective assistance
of counsel on several grounds.
As Magistrate Judge Eifert
pointed out, the doctrine and the AEDPA compel a highly
deferential standard of review of state court adjudications of
ineffective assistance claims.
It is noteworthy that the trial
court (the Circuit Court of Fayette County) reviewed these
claims in detail when it denied petitioner’s state habeas
petition, a denial subsequently affirmed by the West Virginia
Supreme Court of Appeals in a summary fashion.
In general, deciding claims of ineffective assistance
of counsel under federal law involves the application of a twoprong test articulated in Strickland v. Washington: (1) whether
4
counsel’s performance was deficient, and, if the first prong is
met, (2) whether such deficient performance caused the defendant
prejudice.
466 U.S. 668, 687 (1984).
The relevant standard is
an objective standard of reasonableness, id. at 688, and
reviewing courts must make “every effort” 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,” id. at 689.
The first ineffective assistance claim states that his
trial counsel admitted in his opening statement that there was
proof of delivery of oxycodone by the petitioner to the young
victim who died from its ingestion.
In making this claim, the
petitioner seizes upon a comment, underlined below, that was
made by his counsel in his opening statement that, the
petitioner says, conceded an element of the offense.
When that
statement is viewed in the context of counsel’s further remarks,
it becomes plain that no such concession was made.
His
counsel’s statement, in pertinent part, follows:
Now, on the night in question, the evidence is going
to be that Henry Jenkins and [C.C.J., the victim] –
and there are a number of other people in the trailer,
and a couple of them went over to the house of Mr.
Josh Settle. And [the Prosecutor] told you about Mr.
Settle. And they went to Mr. Settle’s house, and they
purchased three pills.
* * *
5
They got three pills from Josh Settle. Now, as [the
Prosecutor] said, what the State needs to prove here
today to prove felony murder is that there was a
delivery of a drug, a giving, a transfer of this drug
to this young man so this young man had access to it.
Well, there is proof of that. Josh Settle took a Drug
with [C.C.J.] in the room, knowing it would be there
in his presence, and handed that drug over to Henry
Jenkins. Is Josh Settle guilty? No. The evidence is
going to be Josh Settle has cut a deal, and he’s got
what we call immunity. He’s not going to be charged
with nothing.
Now there’s a deal. There’s a transfer. But Josh
Settle? No. No. No. There’s nothing there. We’re
not going to do anything with Josh. You’ll hear him
testify today and he’ll walk out of here.
* * *
Now, there were a number of people in the trailer that
evening, and you’re going to get to hear evidence and
testimony from everyone who was there.
* * *
But you all have taken an oath to follow the law. And
the law is that the State has to prove there was a
transfer. And the evidence from every single witness
who was there that night is going to be, “I did not
see Henry Jenkins give [C.C.J.] any drugs on the
evening of November the 14th or the early morning hours
of November 15th.” That’s the evidence that you’re
going to hear.
As the magistrate judge aptly noted, “the state
circuit court observed that a fair reading of trial counsel’s
statements in context suggests that trial counsel’s strategy was
to minimize the effectiveness of strong negative evidence by
6
conceding in opening that someone delivered drugs to C.C.J., and
arguing that it was not Petitioner.”
As does the magistrate judge, the court agrees with
the state court, and the supreme court justices who reviewed the
decision, that it was a reasonable strategy for trial counsel to
try to minimize the negative effect of the delivery evidence by
bringing it up during opening statement and trying to direct
culpability away from Petitioner and onto Mr. Settle or others.
In the related context of closing arguments, the Supreme Court
has noted, “Judicial review of a defense attorney’s summation is
therefore highly deferential and doubly deferential when it is
conducted through the lens of federal habeas.”
Gentry, 540 U.S. 1, 6 (2003).
Yarborough v.
The state courts’ finding that
the admission did not give rise to an ineffective assistance
claim under Strickland is not unreasonable.
The court overrules
petitioner’s objection on this ground.
The second ineffective assistance ground is failure to
call or disclose any expert witnesses.
Petitioner argues that
the failure did not follow an investigation and is therefore not
entitled to a presumption of its strategic nature.
Yet, as the
magistrate judge discusses, at 55-56, counsel undertook an
investigation and made a strategic decision.
The court agrees
that counsel had undertaken an adequate investigation before
7
deciding — for better or worse — not to retain expert witnesses.
Because counsel’s conduct does not meet the unreasonableness
prong of Strickland, petitioner’s request to presume prejudice
is unavailing.
Indeed, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable,” Strickland, 466 U.S. at 690.
Accordingly, the court agrees with the PF&R that petitioner
cannot obtain habeas relief on this ground, for reasons laid out
therein.
The third ineffective assistance claim alleges that
the counsel failed to object to prejudicial remarks by the
prosecutor.
Once again, petitioner reprises claims he already
brought and maintains that Magistrate Judge Eifert’s proposed
resolution of his failure to object ground “trivializes the
prejudicial effect on Petitioner’s rights” such as the right to
remain silent, the right to confront your accuser, and the
sufficiency of evidence to convict.
Objections, at 13.
As the
magistrate judge correctly found, the alleged disparaging
references by the prosecutor to petitioner’s choice not to
testify in his own defense in fact “did not allude to
Petitioner’s decision not to testify.”
PF&R, at 53.
See also
PF&R at 71—72.
In the context of the right to confront his accuser
8
and the sufficiency of evidence, petitioner presumably refers to
his argument that his trial counsel mistakenly did not object to
the prosecutor’s statement, “I would not have brought the case
to the Grand Jury on the testimony of Holly Burdette...”
As the
PF&R notes, that statement “was not improper or prejudicial.”
PF&R, at 54.
Finally, as the magistrate judge explained, the
prosecutor’s remark about a “higher standard” for a special
needs child, viewed in context, did not refer to any different
legal standard for proving the offenses for which petitioner was
on trial.
PF&R, at 54-55.
The final objection petitioner brings has to do with
prosecutorial misconduct.
It consists of some conclusory
statements and some restatements of ineffective assistance
claims and was addressed well in the PF&R, as were the other
objections.
For the foregoing reasons, the court overrules the
objections and ORDERS that:
1.
The findings made in the Proposed Findings and
Recommendations of the magistrate judge be, and they
hereby are, adopted by the court;
2.
The petitioner’s motion for summary judgment and
petitioner’s renewed motion for summary judgment be,
and they hereby are, denied;
9
Defendants.
ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
3. The respondent’s motion Civ. summary judgment be,with it
01/28/2016
Motions under F.R. for P. 12(b), together and
supporting briefs, memoranda, affidavits, or other
hereby is,matter in support thereof. (All motions
such granted;
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
4. The petitioner’s petition for a writ of habeas corpus
02/08/2016
Last day for Rule 26(f) meeting.
by a person in state custody be, and it hereby is,
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
denied; and
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
5. This Byrd United and it hereby is, dismissed with before
action be, States Courthouse in Charleston,
the undersigned, unless canceled. Lead counsel
prejudice and to appear.
directed removed from the docket of the court.
02/29/2016
Entry of scheduling order.
The Clerk is directed to forward copies of this
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
written opinion and order to all counsel of record, any
The Clerk is requested to transmit this Order and
unrepresented parties,of record and toJudgeunrepresented
Notice to all counsel and Magistrate any Cheryl A. Eifert.
parties.
DATED: September5, 2016
DATED: January 25, 2017
John T. Copenhaver, Jr.
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?