Ward v. Clark
Filing
13
MEMORANDUM OPINION AND ORDER denying Petitioner's 7 OBJECTIONS to the Magistrate's Proposed Findings and Recommendations; ADOPTING in full the Magistrate's 6 Proposed Findings and Recommendations; denying Petitioner's 10 LET TER-FORM MOTION to Stay the Circuit Court of Cabell County Judge Alfred E. Ferguson for no further proceedings, 11 LETTER-FORM MOTION to Stay Cabell County Circuit Court & Release, 12 LETTER-FORM MOTION to Stay Court & Release; denying a certificate of appealability. Signed by Judge Robert C. Chambers on 4/9/2013. (cc: attys; any unrepresented parties) (mkw)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
MARK DELANE WARD,
Petitioner,
v.
CIVIL ACTION NO. 3:12-07928
MIKE CLARK, Administrator,
Western Regional Jail;
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner Mark Delane Ward’s Objections (ECF No. 7) to
the Magistrate’s Proposed Findings and Recommendations (ECF No. 6). For the reasons stated
below, Petitioner’s Objections (ECF No. 7) are DENIED, and the Magistrate’s Proposed
Findings and Recommendations (ECF No. 6) are ADOPTED in full. Additionally, the Court
DENIES Mr. Ward’s three motions for miscellaneous relief (ECF Nos. 10, 11, 12).
Statement of Facts
Mr. Ward was arrested on November 30, 2011, pursuant to an outstanding warrant for
second-degree sexual assault. Mr. Ward made an initial appearance before a Cabell County
magistrate judge, and a preliminary hearing was scheduled for December 9, 2011. Because he
was unable to post bond, he was detained at Western Regional Jail. Upon arriving for the
preliminary hearing, according to Mr. Ward, he was told that “I had been indicted and my case
was dismissed,” and so the preliminary hearing was canceled. Pet. at 2, ECF No. 1. He was
returned to Western Regional Jail pending trial.
On November 19, 2012, Mr. Ward filed a pro se Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241. ECF No. 1 (hereinafter “Petition” or “Pet.”). Mr. Ward raises four
grounds for relief. First, he argues that he was improperly denied his preliminary hearing under
West Virginia Rule of Criminal Procedure 5(c), because he cannot be indicted after the
preliminary hearing has been scheduled. Id. at 6. He claims that “if I had competent
representation I would have been released a long time ago[.] I also had evidence I wanted
submitted at that preliminary hearing and wasn’t able to do so,” which allegedly violated his
Sixth Amendment right to counsel. Id. at 7. Second, Mr. Ward argues that the merge order1
entered by the Cabell County Circuit Court “invaded the jurisdiction of the magistrate court,” in
violation of West Virginia Constitution Article VIII, § 6 and Article III, § 4. Id. Third, Mr. Ward
argues that the record is unclear as to what date he was indicted on, and that he should have been
released from custody when his case was dismissed. Id. Fourth, he argues that he “asked the
Courts to challenge the indictment under West Virginia Rule of Criminal Procedure 6(b)1, 2,”
which was denied, and “[a]ny evidence I’ve gotten from the courts have been police reports[.] I
haven’t received any sworn testimony from the state[’]s witness to be presented to the grand jury
violating W Va Code 52-2-8.” Id. at 8. He requests that he be released from custody and that his
case be dismissed. He also requests that the Court expunge DNA testing that occurred on March
15, 2012.
Magistrate Judge Cheryl A. Eifert issued Proposed Findings and Recommendations
(”PF&R”) on December 18, 2012, recommending that Mr. Ward’s Petition be dismissed. ECF
No. 6. The PF&R explained that the federal court should abstain from involvement in this state
case because all three prongs of the Fourth Circuit’s Martin Marietta test were met. See Martin
1
The circuit judge entered a merge order on December 9, 2011, merging Magistrate Case 11F1678 and the bond set therein with Indictment 11-F-443. ECF No. 1 at 14. Other documents refer
to this order as a “merger order,” and this opinion uses the two terms interchangeable.
2
Marietta Corp. v. Maryland Comm’n on Human Relations, 38 F.3d 1392 (4th Cir. 1994). Even if
federal abstention was not appropriate, the magistrate found that Mr. Ward would not be entitled
to relief because his underlying legal arguments regarding the preliminary hearing and merge
order were unpersuasive. The magistrate also explained that the discrepancy in the date of his
indictment was due to clerical delay and did not impact his case, that Ward could still possibly
receive his grand jury testimony prior to trial, and that there were no grounds for the magistrate
to inquire into the sufficiency of the indictment. Furthermore, the federal court did not have the
power to expunge the DNA test.
Mr. Ward timely filed objections to the PF&R. ECF No. 7 (“Objections”). He argues in
these objections that the Martin Marietta test does not favor abstention, “mainly [as] to the third
prong.” Objections at 1. Furthermore, he objects to the magistrate’s interpretation of West
Virginia Rule of Criminal Procedure 5(c), and points to the Initial Appearance Rights Statement,
form SCA-M312-1, in support of his right to a preliminary hearing. Id. at 1-2. Mr. Ward also
argues that the state magistrate set bond in his case, but that only the circuit court had the power
to do so based on the recitation of rights found in the form. Id. at 2-3. He additionally claims that
his appearance in circuit court 20 days after his initial appearance violated the Fourteenth
Amendment. Id. at 3. He states that the merge order was a violation of law, and that although the
circuit court stated there was no hearing, “a hearing had to have been held to enter the merger
order.” Id. Additionally, he argues that because his case was dismissed, his continued detention
constitutes an unlawful arrest. Id. Furthermore, he claims that he asked to challenge the
indictment on February 15, 2012, his request was denied, and he “believe[s] this hearing never
took place.” Id. at 6. He again claims that he did not receive requested sworn testimony, and asks
for his DNA testing to be expunged.
3
In Section I, the Court will briefly discuss the standard of review applicable to the PF&R.
In Section II, the Court will address abstention under the Martin Marietta test. In Sections III
through VII, the Court will discuss Mr. Ward’s four grounds for his Petition, including his
objections to the magistrate’s treatment of those grounds. In Section VIII, the Court will address
arguments raised in Mr. Ward’s Objections but not in his Petition. In Section IX, the Court will
discuss Mr. Ward’s three miscellaneous motions, filed subsequent to his objections. Lastly, in
Section X, the Court will address the certificate of appealability.
I. Standard of Review
This Court’s review of the magistrate’s proposed findings and recommendations to which
Petitioner objects is de novo. 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”). Therefore,
this Court will review de novo the magistrate’s determination that the Martin Marietta test favors
abstention, and the magistrate’s determination regarding the four grounds underlying Mr. Ward’s
Petition.
II. Abstention Pursuant to the Martin Marietta test
The U.S. Supreme Court explained in Younger v. Harris that federal courts should not
intervene in state criminal proceedings unless certain extraordinary circumstances are present.
401 U.S. 37 (1971). As elaborated by the Fourth Circuit, “federal courts should abstain from the
decision of constitutional challenges to state action, however meritorious the complaint may be,
‘whenever [the] federal claims have been or could be presented in ongoing state judicial
proceedings that concern important state interests.’” Cinema Blue of Charlotte, Inc. v. Gilchrist,
4
887 F.2d 49, 52 (4th Cir. 1989) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 237-38
(1984)). Furthermore, “[i]n Younger and its progeny, the Supreme Court generally has found
abstention appropriate if the following three-pronged test is met: 1) there are ongoing state
judicial proceedings; 2) the proceedings implicate important state interests; and 3) there is an
adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta, 38 F.3d
at 1396 (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432
(1982)).2 These three prongs together are known as the Martin Marietta test.
Mr. Ward argues in his objections that the Martin Marietta test does not favor abstention,
“mainly [as] to the third prong.” Objections at 1. After reviewing this determination de novo, this
Court agrees with the magistrate, and finds that the Martin Marietta test is met—including as to
the third prong—and this Court should therefore not intervene in Mr. Ward’s ongoing state court
proceedings. The first prong is met because there are indeed ongoing state judicial proceedings
against Mr. Ward. See Docket Sheet, Case No. 11-F-443, Cabell County Circuit Court (case
opened Dec. 6, 2011). As for the second prong—implication of important state interests—the
Fourth Circuit has held that states have a significant interest in preventing others from violating
their criminal laws. Nivens v. Gilchrist (“Nivens I”), 319 F.3d 151, 154 (4th Cir. 2003) (citation
omitted). Furthermore, another significant state interest is the “efficient operation of [the state’s]
criminal justice system.” Id. (quoting Cooper v. Oklahoma, 517 U.S. 348, 367 (1996)).
Therefore, the second prong is met in this case.
2
See also Nivens v. Gilchrist (“Nivens II”), 444 F.3d 237, 241 (4th Cir. 2006) (“Absent a few
extraordinary exceptions, Younger mandates that a federal court abstain from exercising
jurisdiction and interfering in a state criminal proceeding if (1) there is an ongoing state judicial
proceeding brought prior to substantial progress in the federal proceeding; that (2) implicates
important, substantial, or vital state interests; and (3) provides adequate opportunity to raise
constitutional challenges.”) (citation and footnote omitted).
5
For the third prong, the Court considers whether Mr. Ward has an adequate opportunity
to raise federal claims in the state criminal proceedings. The Fourth Circuit has noted that
“ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for
vindication of federal constitutional rights.” Gilliam v. Foster, 75 F.3d 881, 904 (4th Cir. 1996)
(quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)) (stating that one exception to this general
rule, not applicable to the instant case, is when a petitioner is arguing a violation of the Fifth
Amendment’s Double Jeopardy Clause). An opportunity to raise federal claims on the state level
must not be confused with achieving success on those federal claims. Indeed, “[a]bstention does
not suddenly become improper simply because Appellants lost on the merits in the state court” or
because an adverse ruling in state court is anticipated. Nivens v. Gilchrist (“Nivens II”), 444 F.3d
237, 243 (4th Cir. 2006) (citing Nivens I, 319 F.3d at 158). Mr. Ward noted in his Petition that he
filed for a Writ of Mandamus in the Supreme Court of Appeals of West Virginia in April 2012.
Pet. at 2-3. The state court refused Mr. Ward’s filing. Regardless of the state court’s rejection of
his filing, Mr. Ward appears to have had a fair opportunity to bring his federal claims in state
court. Therefore, the Court finds that all three prongs of the Martin Marietta test have been met
in this case.
When all three prongs of the Martin Marietta test are satisfied, a federal court may
nonetheless intervene “only where (1) ‘there is a showing of bad faith or harassment by state
officials responsible for the prosecution’; (2) ‘the state law to be applied in the criminal
proceeding is flagrantly and patently violative of express constitutional prohibitions’; or (3)
‘other extraordinary circumstances’ exist that present a threat of immediate and irreparable
injury.” Nivens II, 444 F.3d at 241 (quoting Kugler, 421 U.S. at 124). There is no indication in
6
the pending Petition or Objections that there has been any bad faith or harassment.3 Also, there is
no indication that the applicable state law in this case is “flagrantly and patently violative of
express constitutional prohibitions.” As for “extraordinary circumstances” creating “a threat of
immediate and irreparable injury,” the Fourth Circuit has held that “the cost, anxiety, and
inconvenience” of criminal proceedings is not sufficient for intervention. Id. at 241 (quoting
Younger, 401 U.S. at 46). This Court has not found any applicable exceptions, and so the Court
will abstain from involvement in Mr. Ward’s pending state criminal proceedings.
III. Preliminary Hearing and Indictment
Even if the Martin Marietta test favored intervention, however, Mr. Ward would not
prevail on his Petition because the merits of his arguments are unpersuasive. In his Petition, Mr.
Ward argued that he was improperly denied his preliminary hearing under West Virginia Rule of
Criminal Procedure 5(c). He claims that “if I had competent representation I would have been
released a long time ago[.] I also had evidence I wanted submitted at that preliminary hearing
and wasn’t able to do so,” which allegedly violated his Sixth Amendment right to counsel. Pet. at
7. Mr. Ward objects to the magistrate’s interpretation of West Virginia Rule of Criminal
Procedure 5(c), and points to the Initial Appearance Rights Statement, form SCA-M312-1, in
support of his right to a preliminary hearing.
3
Mr. Ward first mentions potential bad faith in his motion for miscellaneous relief, discussed in
Section IX. ECF Nos. 10, 11, 12. For example, in one motion, he states that the circuit court
ordered a psychiatric evaluation; when the test was administered, Mr. Ward requested that his
attorney be present, and the individuals administering the exam refused. ECF No. 10 at 1-2. Mr.
Ward now wants that exam to be expunged. He states “I didn’t I believe [sic] the Circuit
Court[’]s reasoning for psyce [sic] evaluation is to change and m[a]nipulate more documents to
their advantage.” Id. at 2. Mr. Ward also states that “false waivers are justifying this . . .
malicious prosecution.” Id. at 3. See also ECF Nos. 11, 12 (alleging falsity of exam report,
malicious prosecution and misconduct of court). These claims—not raised in the Petition or the
Objections and not directly relevant to the merge order and preliminary hearing—are not
sufficient for finding bad faith or harassment apart from Mr. Ward’s general dissatisfaction with
his incarceration. The Court also notes that Mr. Ward has filed a malicious prosecution case
which is still pending. See No. 3:12-cv-6186 (S.D. W. Va. filed Oct. 3, 2012).
7
West Virginia Rule of Criminal Procedure 5(c) discusses preliminary hearings (also
called preliminary examinations), and states that “[i]f the offense is to be presented for
indictment, a defendant is entitled to a preliminary examination, unless waived.” The Rule
subsequently elaborates on the details of this requirement in part as follows:
If the defendant does not waive the preliminary examination, the magistrate shall
schedule a preliminary examination. Such examination shall be held within a
reasonable time but in any event not later than 10 days following the initial
appearance if the defendant is in custody and no later than 20 days if the
defendant is not in custody; provided, however, that the preliminary examination
shall not be held if the defendant is indicted or if an information against the
defendant is filed in circuit court before the date set for the preliminary
examination.
W. Va. R. Crim. P. 5(c).
West Virginia courts have interpreted Rule 5 to mean that a preliminary hearing is not
required when the indictment has been returned against the defendant prior to the actual
scheduled date of the preliminary hearing. For example, the Supreme Court of Appeals of West
Virginia in State v. Hutcheson discussed Rule 5(c) and noted the court’s “holdings that the return
of an indictment dispenses with the necessity of a preliminary hearing.”4 352 S.E.2d 143, 148
(W. Va. 1986) (citing State ex rel. Rowe v. Ferguson, 268 S.E.2d 45 (W. Va. 1980); State ex rel.
Spadafore v. Fox, 186 S.E.2d 833 (W. Va. 1972); State v. White, 280 S.E.2d 114 (W. Va. 1981)).
Similarly, under Rule 5, “the preliminary hearing shall not be held if the defendant is indicted or
if an information is filed against the defendant in circuit court before the date of the preliminary
hearing.” Peyatt v. Kopp, 428 S.E.2d 535, 537 (W. Va. 1993). The Rule’s preliminary hearing
requirement, coupled with exceptions, is consistent with the Federal and State Constitutions,
4
The Court points out that Rule 5 became effective on October 1, 1981, and was amended in
1993, 1995, and 1996. The only difference that this Court has found between the current portion
of Rule 5(c) as quoted above and the version as quoted in State v. Hutcheson is the substitution
of “the defendant” for “he” in one clause and the addition of a comma. The Court does not
believe that these changes to Rule 5(c) upset the applicability of this case to the instant situation.
8
neither of which grant a right for defendants to have a preliminary hearing. Id. at 537 (citing Syl.
Pt. 1, Rowe, 268 S.E.2d 45; Syl. Pt. 1, Gibson v. McKenzie, 259 S.E.2d 616 (W. Va. 1979)).
In State ex rel. Rowe v. Ferguson, the defendants claimed that under West Virginia Code
§ 62-1-8,5 they were entitled to a preliminary hearing because their offense was to be presented
to a grand jury. The court disagreed with this interpretation, explaining that the defendants’
argument “would necessitate our reading W. Va. Code, 62-1-8, out of context with its related
statutes, and would thus violate recognized rules of statutory construction which require us to
read statutes relating to the same subject in pari materia.” 268 S.E.2d at 48 (citations omitted).
The Court also stated that:
Where the State proceeds under W. Va. Code, 62-1-1, et seq., to arrest the
accused for an offense which must be brought before the grand jury, the defendant
is entitled to a preliminary hearing under W. Va. Code, 62-1-8 (1965). If,
however, the State elects to indict him without a preliminary hearing or before
one can be held, the preliminary hearing is not required.
Syl. Pt. 3, Id. Mr. Ward argues in his Objections that § 62-1-8 was preempted by Rule
5(c). Objections at 5. Even if this were true, the case in nonetheless instructive to understanding
the right to a hearing, and does not upset the Court’s interpretation of Mr. Ward’s right to a
preliminary hearing. This Court believes that the magistrate’s treatment of § 62-1-8 and Rule
5(c) in the PF&R is correct.
Mr. Ward also points to the Initial Appearance Rights Statement, form SCA-M312-1,
revised in September 2011, which states that “[t]he Magistrate has informed me that, since I have
been charged with a felony, I have the right to a preliminary hearing for a determination of
5
This statute states in pertinent part that:
If the offense is to be presented for indictment, the preliminary examination shall
be conducted by a justice of the county in which the offense was committed
within a reasonable time after the defendant is arrested, unless the defendant
waives examination.
W. Va. Code § 62-1-8.
9
whether any felony charge(s) should be bound over for possible presentation to a grand jury.” In
the instant case, the grand jury indicted Mr. Ward after the date for his preliminary hearing was
set, but before that preliminary hearing actually took place. The hearing was set for 10 days after
his initial appearance, but the grand jury returned the indictment before the hearing actually
occurred, thus making it unnecessary for the court to hold a preliminary hearing, regardless of
the terms of the form. As explained above, this is proper under federal and state law, including
under Rule 5(c), and so Mr. Ward would not succeed on this argument even if the Court chose
not to abstain from intervention in his state case.
Furthermore, it is worth noting that an accused has no right to be present at a grand jury
hearing. State v. Justice, 44 S.E.2d 859, 863 (W. Va. 1947). A grand jury issues an indictment
based on its own independent finding of probable cause, and it is well-settled that grand jury
hearings can be ex parte, without the accused present. Furthermore, although a preliminary
hearing is one method for determining probable cause, an ex parte grand jury hearing is an
equally-sufficient means of making the probable cause determination. See Gerstein v. Pugh, 420
U.S. 103, 117 n.19, 123 (1975) (holding that “the Constitution does not require an adversary
determination of probable cause,” “[t]here is no single preferred pretrial procedure” for
determining probable cause, and that an indictment “conclusively determines the existence of
probable cause.”). Therefore, Mr. Ward had no right to be present before the grand jury, to have
counsel present on his behalf, or to present evidence to the grand jury.
Furthermore, Mr. Ward attempted to challenge the validity of the indictment based on
Rule 6(b)(1) and (2), which states at follows:
6(b) Objections to grand jury and grand jurors.
(1) Challenges. The prosecuting attorney or a defendant who has been held to
answer in the circuit court may challenge the array of jurors on the ground that the
grand jury was not selected, drawn, or summoned in accordance with law, and
10
may challenge an individual juror on the ground that the juror is not legally
qualified. Challenges shall be made before the administration of the oath to the
jurors and shall be tried by the circuit court.
(2) Motion to dismiss. A motion to dismiss the indictment may be based on
objections to the array or on the lack of legal qualifications of an individual juror,
if not previously determined upon challenge. An indictment shall not be dismissed
on the ground that one or more members of the grand jury were not legally
qualified if it appears from the record kept pursuant to subdivision (c) of this rule
that 12 or more jurors, after deducting the number not legally qualified, concurred
in finding the indictment.
Also, he states that he asked to challenge the indictment, his request was denied, and he
“believe[s] this hearing never took place.” Objections at 6. It is unclear what Mr. Ward means
when he states that his request on February 15, 2012 to challenge the indictment on these
grounds was denied.6 Also, because there is no information from Mr. Ward regarding his specific
objections to the grand jury or specific jurors, this Court cannot find that there has been a
violation of Rule 6(b)(1) or (2). Therefore, Mr. Ward’s claims about the preliminary hearing and
indictment would not succeed on the merits.
IV. Merge Order
Mr. Ward argues in his Petition that the merge order entered by the Cabell County Circuit
Court “invaded the jurisdiction of the magistrate court,” in violation of West Virginia
Constitution Article VIII, § 6 and Article III, § 4. The circuit judge entered a merge order on
December 9, 2011, merging Magistrate Case 11F-1678 and the bond set therein with Indictment
11-F-443. This order was proper and in accordance with the respective jurisdictions of the
magistrate court and circuit court.
6
There is no docket entry for that date in his Cabell County Circuit Court case.
11
West Virginia Constitution Article III, § 4 does not lend any support to Mr. Ward’s
argument that the merge order or his continued detention is invalid.7 Furthermore, Article VIII, §
6 supports a finding that the circuit court did not infringe on the state magistrate’s jurisdiction.
This Section states in pertinent part that “[c]ircuit courts shall have control of all proceedings
before magistrate courts by mandamus, prohibition and certiorari,” “[c]ircuit courts shall have
original and general jurisdiction . . . of proceedings in habeas corpus,” and “[c]ircuit courts shall
also have such other jurisdiction, authority or power, original or appellate or concurrent, as may
be prescribed by law.” While circuit courts have original and general jurisdiction over crimes
and misdemeanors, W. Va. Code § 51-2-2, the jurisdiction of magistrates expressly is limited to,
inter alia, “misdemeanor offenses committed in the county” and “conduct[ing] preliminary
examinations on warrants charging felonies committed within the county,” W. Va. Code § 50-23. Therefore, the State Constitution does not support any argument that the magistrate’s
jurisdiction was infringed upon. The Supreme Court of Appeals of West Virginia has also
explained that the magistrate court has jurisdiction over, inter alia, misdemeanors and
preliminary examinations for felony offenses. State v. Satterfield, 387 S.E.2d 832, 833 n.3 (W.
Va. 1989) (quoting W. Va. Code § 50-2-3). However, only the circuit court has jurisdiction over
felony offenses after the preliminary examination stage. See id. It was therefore proper for the
magistrate case to be transferred and merged into a circuit court case after the indictment was
issued.
In his objections, Mr. Ward states that the merge order was a violation of law, and that
although the circuit court denies that a hearing took place, “a hearing had to have been held to
7
“The privilege of the writ of habeas corpus shall not be suspended. No person shall be held to
answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or
indictment of a grand jury. No bill of attainder, ex post facto law, or law impairing the obligation
of a contract, shall be passed. “W. Va. Const. Art. III, § 4.
12
enter the merger order.” Objections at 3. According to the docket sheet for Circuit Court Case
No. 11-F-443, no hearing was held on December 9, 2011, and the merge order was simply
entered on that date without a hearing. This procedure was proper. Furthermore, the Court notes
that Mr. Ward had no right to contest the merge order at a hearing. Mr. Ward was indicted by the
grand jury for second-degree sexual assault (a felony) and intimidation of a witness (a
misdemeanor). ECF 1 at 15. Therefore, the magistrate’s jurisdiction over Mr. Ward’s case ended
with the indictment, and the magistrate’s case was properly merged with the case stemming from
the felony indictment at that point.
Mr. Ward argues that because his initial magistrate case was dismissed, his continued
detention constitutes an unlawful arrest. The docket sheet for Magistrate Case No. 11-F-1678
states that the case was “dis[missed] per state- matter has been indicted by the Cabell County
grand jury.” However, Mr. Ward did not have a right to be released in a merger situation like this
one. The magistrate’s case was only “dismissed” in the sense that the magistrate could no longer
exercise jurisdiction over Mr. Ward’s case once the grand jury issued a felony indictment,
although the magistrate’s case and the indictment both stemmed from the same crime—sexual
assault. Once the indictment was issued, it was necessary to merge the magistrate’s case into a
case before the circuit court, in order to respect the distinct jurisdictions of each court. It was not
necessary for Mr. Ward to be released from custody in that situation. Therefore, Mr. Ward’s
objections to the merge order would not succeed if this court reached the merits of his
arguments.
V. Date of Indictment
Mr. Ward argues in his Petition that the record is unclear as to what date he was indicted
on. The docket sheet for his Cabell County case (No. 11-F-443) lists his indictment in an entry
13
dated December 6, 2011, while the face of the indictment itself states a filing date of December
5, 2011. Just as the Magistrate explained, a plausible explanation for this date difference is that
the indictment was issued on December 5, but there was a delay in filing the indictment in the
system until December 6. There is no indication that this discrepancy in dates brings into
question the indictment or suggests foul play. Therefore, the difference in dates does not justify
Mr. Ward’s release or dismissal of his case.
VI. Receipt of Evidence
Mr. Ward additionally takes issue with the sorts of evidence he has received. Specifically,
“[a]ny evidence I’ve gotten from the courts have been police reports[.] I haven’t received any
sworn testimony from the state[’]s witness to be presented to the grand jury violating W Va Code
52-2-8.” Pet. at 8. In his objections, Mr. Ward again states that he has not received requested
sworn testimony, and suggests that this violates West Virginia Code § 52-2-2 and West Virginia
Constitution Article III, § 4.
West Virginia Code § 52-2-2 involves petit juries, and so is not applicable here. Also, as
explored above, West Virginia Constitution Article III, § 4 does not support this argument. West
Virginia Code § 52-2-8 states that:
At least twelve of the grand jurors must concur in finding or making an
indictment or presentment. They may make a presentment or find an indictment
upon the information of two or more of their own body, and when a presentment
or indictment is so made, or on the testimony of witnesses called on by the grand
jury, or sent to it by the court, the names of the grand jurors giving the
information, or of the witnesses, shall be written at the foot of the presentment or
indictment.
The statute does not support a right to grand jury testimony. According to West Virginia Rule of
Criminal Procedure 6, some disclosure of grand jury transcripts is allowed:
Disclosure otherwise prohibited by this rule of matters occurring before the grand
jury may also be made:
14
(ii) when permitted by a court at the request of the defendant, upon a showing
that grounds may exist for a motion to dismiss the indictment because of matters
occurring before the grand jury
W. Va. R. Crim. P. 6(e)(3)(C). Therefore, it is in the circuit court’s discretion whether to release
grand jury materials to a defendant who wishes to challenge the indictment. Additionally,
“[e]xcept for willful, intentional fraud the law of this State does not permit the court to go behind
an indictment to inquire into the evidence considered by the grand jury, either to determine its
legality or its sufficiency.” Justice v. Ballard, No. 11-0321, 2011 WL 8199945, at *21 (W. Va.
Nov. 15, 2011) (unpublished decision) (quoting Syl., Barker v. Fox, 238 S.E.2d 235 (W. Va.
1977)). There is no indication the indictment in this case was subject to fraud.
Rule 26.2 provides for the right to grand jury testimony of witnesses after the witness
testifies at the trial:
After a witness other than the defendant has testified on direct examination, the
court, on motion of a party who did not call the witness, shall order the attorney
for the state or the defendant and the defendant’s attorney, as the case may be, to
produce for the examination and use of the moving party any statement of the
witness that is in their possession and that relates to the subject matter concerning
which the witness has testified.
W. Va. R. Crim. P. 26.2(a). Mr. Ward’s criminal trial has not yet occurred, and so disclosure
pursuant to Rule 26.2(a) is not yet required.
VII. Expunging DNA Testing
Mr. Ward requests the Court to expunge DNA testing. In his Petition, he claims that the
testing was unlawful, but offers no explanation why. In his objections, Mr. Ward states that he
asked for paperwork to sign before the testing, but his attorney and other individuals explained
there was no paperwork; he then refused to complete the testing, and the testing was forcefully
performed. He also states that the testing occurred on March 15, 2012, but that the testing was
not approved until March 28, 2012. The docket sheet does list a notice of a hearing for March 15,
15
and the order granting the DNA swab on March 28. Resolution of this claim is unnecessary
because the Court is not intervening in his state case. Furthermore, Mr. Ward would not be
prevented from presenting such a claim in state court.
VIII. Other Arguments
Mr. Ward’s objections to the PF&R raise additional grounds for habeas relief not
addressed in the Petition. For example, Mr. Ward points out that the state magistrate set bond in
his case, but that only the circuit court had the power to do so. He additionally argues that his
appearance in circuit court 20 days after his initial appearance was a violation of the Fourteenth
Amendment. These arguments were not raised in his initial Petition, and so the Court will not
address the merits of these arguments.
IX. Motions to Stay, to Expunge Evaluation, and for Other Relief
Mr. Ward has also filed a motion requesting various relief. ECF No. 10. He asks for this
Court to stay his circuit court proceedings before Judge Ferguson, pursuant to 28 U.S.C. §
2251(a)(1).8 Because this Court accepts the magistrate’s recommendation that the habeas corpus
petition be dismissed, the Court now denies Mr. Ward’s request to stay the circuit court
proceedings.
8
28 U.S.C. § 2251(a)(1) states that:
A justice or judge of the United States before whom a habeas corpus proceeding
is pending, may, before final judgment or after final judgment of discharge, or
pending appeal, stay any proceeding against the person detained in any State court
or by or under the authority of any State for any matter involved in the habeas
corpus proceeding.
Additionally, § 2251(b) states that:
After the granting of such a stay, any such proceeding in any State court or by or
under the authority of any State shall be void. If no stay is granted, any such
proceeding shall be as valid as if no habeas corpus proceedings or appeal were
pending.
16
Mr. Ward also requests in that motion that the Court expunge a court-ordered psychiatric
evaluation. According to the docket sheet, the circuit court did order initial forensic examinations
to determine competency or criminal responsibility or both. Case No. 11-F-443, Cabell County
Circuit Court, Jan. 31, 2013. He additionally notes that he “asked for a fast and speedy trial on
Oct 1, 2012 and Oct 23, 2012 and was denied months ago.” He is also “concerned” that he has
not “received any paperwork under USCA 2243 any motions for good cause by the circuit court
asking for additional time to review my case.” Also, he alleges there have been “false waivers”
and malicious prosecution. In reading the claims asserted in this motion other than the request for
a stay, the Court is sympathetic to the many challenges that pro se litigants face in completing
filings without the assistance of an attorney. Other than the request for a stay, however, these
other arguments in the motion must be raised in a proper habeas petition in order for the Court to
consider them. Asserting them in a miscellaneous motion rather than the original petition does
not suffice. Therefore, the Court will not consider them now.9
Mr. Ward filed a second motion for miscellaneous relief on March 25, 2013. ECF No. 11.
He states therein that he has not received proposed findings and recommendations regarding
another civil case he has filed (3:12-cv-6186), and the Court reminds Mr. Ward that the case is
pending, and that a court will address the filings in due course. Mr. Ward also asks for the Court
to expunge the psychiatric examination, complains of false information concerning a plea, and
alleges that his lawyers have not protected his rights. Again, the Court will not consider those
arguments, because they must be brought up in a proper habeas petition in order for the Court to
rule on them. Mr. Ward states that § 2241 petitions must be reviewed within 25 days, and voices
9
The Court had difficulty understanding some of petitioner’s arguments. Again being
sympathetic to the difficulties litigants face in composing pro se filings, the Court nonetheless
encourages litigants to make their arguments as clearly as possible.
17
dissatisfaction with the amount of time in which the Court reviewed his Petition. However, the
Court is aware of no such deadline. Mr. Ward again requests this Court to stay the circuit court
proceedings, but for the reasons explained above, this request is denied. Mr. Ward additionally
requests to be brought before the Court, but Mr. Ward does not have the right to any hearing
before the Court on this Petition. Therefore, the Court denies this motion.
Mr. Ward filed an additional motion for relief on March 26, 2013. ECF No. 12. He
claims that the circuit court is “prosecuting” him for his religious beliefs and is engaging in
malicious prosecution; states there was a 25-day time limit to review his Petition; requests a stay;
asks for the psychiatric evaluation to be expunged; requests to be brought before the federal
court; and states that he has not received proposed findings and recommendations regarding the
other civil case he has filed (3:12-cv-6186). The Court again denies Mr. Ward’s motion to stay,
because the Court is now ruling on the pending Petition. As stated above, the Court is aware of
no expired time limit for considering this Petition, and Mr. Ward does not have a right to appear
before this Court on the Petition. This Court again reminds Mr. Ward that the other civil case is
pending, and the court will address the filings in that case in due course. The remaining
arguments must be brought up in a proper filing to be considered, and this miscellaneous motion
does not suffice. Therefore, the Court denies this motion.
X. Certificate of Appealability
The Court additionally has considered whether to grant a certificate of appealability. See
28 U.S.C. § 2253(c). A certificate will not be granted unless 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.
18
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court concludes that the
governing standard is not satisfied in this instance. Accordingly, the Court DENIES a certificate
of appealability.
Conclusion
For the reasons stated above, Petitioner’s Objections (ECF No. 7) are DENIED, and the
Magistrate’s Proposed Findings and Recommendations (ECF No. 6) are ADOPTED in full.
Additionally, the Court DENIES Mr. Ward’s three motions for miscellaneous relief (ECF Nos.
10, 11, 12).
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.
ENTER:
19
April 9, 2013
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?