Anstey v. Ballard

Filing 57

MEMORANDUM OPINION AND ORDER adopting and incorporating in full the 39 Proposed Findings and Recommendations by Magistrate Judge; directing the petitioner's 43 objections to the PF&R are overruled, the petitioner's petition for a wr it of habeas corpus is denied, and the respondent's 22 motion for judgment on the pleadings is granted; and further directing this case be dismissed and stricken from the court's docket. Signed by Judge John T. Copenhaver, Jr. on 8/6/2019. (cc: counsel of record; any unrepresented parties; Magistrate Judge) (ts)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SAMUEL ANSTEY,
Petitioner,
v.

Civil Action No. 2:17-cv-03462

RALPH TERRY, Warden, Mount
Olive Correctional Complex,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending is the petitioner’s Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254, filed June 28, 2017, and
respondent’s motion for judgement on the pleadings, filed March
30, 2018.

This action was previously referred to the Honorable

Cheryl A. Eifert, United States Magistrate Judge, for submission
to the court of her Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On December 19, 2018, the magistrate judge entered her PF&R
recommending that the court grant the respondent’s motion for
judgment on the pleadings, deny the petitioner’s petition, and
dismiss this case.

The court granted petitioner’s request for

additional time to file his objections, which were subsequently
filed on January 22, 2019.

The court thereafter granted petitioner’s request to
temporarily stay consideration of his petition so that he may
conduct proposed testing to gather further evidence.

On July

25, 2019, petitioner’s counsel informed the court that the
testing produced no new evidence and that the court may proceed
to consider the petition.

The court accordingly does so.

Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
The petitioner raises five objections to the PF&R.
First, the petitioner contends that the magistrate judge
incorrectly applied the standard of review for a judgment on the
pleadings.

Specifically, he contends that the magistrate judge

considered solely the state’s circumstantial theory of his case
and failed to consider the evidence the petitioner presented as
attachments to his habeas petition.

A cursory review of the

magistrate judge’s opinion, however, reveals that the magistrate
judge appropriately considered the relevant facts and analyzed
the petition under the proper standard of review.
2

The magistrate judge first found that the “newly
discovered evidence” that the petitioner asserts entitles him to
relief -- the National Fire Protection Association 921 Guide for
Fire and Explosion Investigations (“NFPA 921”), which was not
the national authority for standards in fire investigations
until 2000 -- is not a factual predicate that satisfies the
requirements for second or successive petitions under 28 U.S.C.
§ 2244(b)(2).

That provision states that a claim in a second or

successive habeas corpus application shall be dismissed unless:
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exercise
of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
Only subsection (B) is applicable here.

As to this issue, the

magistrate judge found: first, that the NFPA 921 standards are
not a factual predicate but simply allow for new conclusions to
be drawn from the already pre-existing facts; second, that the
petitioner failed to show that the NFPA 921 could not have been
previously discovered through the exercise of due diligence
3

because the standards were created in 1992, seven years prior to
his previously-filed 1999 petition, even though they were not
the national standard until 2000; and third, that aside from the
failures under subsection (B)(i), the petitioner nonetheless
failed to establish that even if the fire investigation
presented at trial was disproven because of the new NFPA 921
standards, no reasonable factfinder would have found him guilty.
The first objection refers primarily to this third conclusion.
However, the magistrate judge indeed applied the correct
standard when she considered whether the remainder of the
evidence -- even without the fire investigation, which is the
portion of the evidence the petitioner is contesting -- could
sustain a guilty verdict.

PF&R at 13-16.

Moreover, having

already reached two conclusions which found that the petitioner
failed to meet the requirements of § 2244(b)(2)(B)(i), the
magistrate judge’s conclusion under § 2244(b)(2)(B)(ii) is not
vital to the ultimate conclusion reached in the PF&R.
The magistrate judge next found that the second or
successive petition was untimely under 28 U.S.C. § 2244(d)(1),
which establishes a one-year filing deadline, because, at the
latest, the NFPA 921 standards could have been discovered in
2011, which, according to one of the petitioner’s experts, is
when the most recent version of the NFPA 921 standards were
produced.

As the magistrate judge stated, explicitly applying
4

the correct standard of review:

“when construing the period

most liberally in Anstey’s favor, the one-year statute of
limitations began in 2011 when the version of NFPA 921 was
published that provided the fire investigations standards that
form the basis of Anstey’s expert affidavits[.]”
The magistrate judge then denied petitioner’s argument
that his actual innocence claims render his second or successive
petition cognizable, again correctly noting that even without
the fire investigation -- that is, even assuming petitioner’s
claim was accepted -- it was not more likely than not that no
reasonable juror would have found him guilty, applying the same
standard as previously discussed for § 2244(b)(2)(B)(ii).
Additionally, the magistrate judge correctly noted that: a
freestanding claim of actual innocence has not been recognized
by the Fourth Circuit or Supreme Court outside of a capital
context; nonetheless the standard for a freestanding innocence
claim is extraordinarily high; and the petitioner has not
asserted new evidence supporting his factual innocence, but
rather asserts that if the NFPA 921 standards would have been
used to purportedly disprove the investigation at trial, the
state could not have proven him guilty.

The magistrate judge

applied the correct standard and found this insufficient.
Because the correct standard was applied for each of the

5

magistrate judge’s conclusions, the petitioner’s first objection
is overruled.
Second, the petitioner objects to the magistrate
judge’s finding that an evidentiary hearing was not warranted to
resolve this case, contending that the petitioner would have
been able to provide evidence to support his innocence claim in
an evidentiary hearing.

However, the magistrate judge provided

several, independent reasons as to why the petition must be
dismissed, even when, as already discussed, construing all facts
in the petitioner’s favor.

Thus, the magistrate judge correctly

concluded that an evidentiary hearing was unnecessary, and the
second objection is overruled.
Third, petitioner objects generally to the magistrate
judge’s conclusion that the petitioner failed to meet the
requirements of § 2244(b)(2)(B).

Specifically, he disputes the

magistrate judge’s conclusions that the NFPA 921 does not
constitute a factual predicate, that the NFPA 921 could have
been discovered through due diligence, and that the petitioner
could not prove by clear and convincing evidence that no
reasonable factfinder would have found him guilty of firstdegree murder by arson.

However, the petitioner presents no new

arguments of which the magistrate judge did not properly
dispose.

Accordingly, the third objection is overruled.
6

Fourth, petitioner objects to the magistrate judge’s
finding that the petition was beyond the one-year statute of
limitations because, according to the petitioner, the deadline
of 28 U.S.C. § 2244(d)(1) does not apply to second or successive
petitions.

The magistrate judge discussed this issue and found

that the clear language of the statute applies to any habeas
petition, including second or successive ones.

The court agrees

with this analysis and further notes that courts consistently
apply the statute of limitations to second or successive
petitions, and the petitioner has not provided a case
demonstrating otherwise.

See e.g., McLean v. Clarke, No.

2:13CV409, 2014 WL 5286515, at *7 (E.D. Va. June 12, 2014)
(applying the statute of limitations to a second or successive §
2254 petition but nonetheless finding that the petition was
timely due to equitable tolling when the motion for
authorization to file the petition was filed within the one-year
deadline, “[d]ue to the lack of case law in the Fourth Circuit
regarding whether filing the petition with the motion for
authorization is sufficient to meet the statute of limitations,
conflicting case law in the circuits to address the issue,” and
the circumstances of the filing in that case.); and Fierro v.
Cockrell, 294 F.3d 674, 680 (5th Cir. 2002) (applying the
statute of limitations to a second or successive petition and
finding that it was outside of the statute of limitations
7

despite the motion for authorization being filed within the oneyear period, because the motion for authorization was not itself
an application for a writ of habeas corpus).

The fourth

objection is overruled.
Lastly, the petitioner objects to the magistrate
judge’s finding that the freestanding claim of actual innocence
fails.

Petitioner asserts general disagreement with the

magistrate judge’s conclusion and again requests an evidentiary
hearing.

The magistrate judge thoroughly considered the issue

and the applicable law, and the court agrees with her
conclusion.

The petitioner’s fifth objection is overruled.

The court, accordingly, ORDERS as follows:
1. That the petitioner’s objections to the PF&R be, and they
hereby are, overruled;
2. That the magistrate judge’s Proposed Findings and
Recommendation be, and they hereby are, adopted and
incorporated in full;
3. That the petitioner’s petition for a writ of habeas corpus
be, and hereby is, denied; and
4. That the respondent’s motion for judgment on the pleadings
be, and hereby is, granted; and

8

5. That this case be, and hereby is, dismissed and stricken
from the court’s docket.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
Enter: August 6, 2019

9