Talbert v. Plumley
Filing
32
MEMORANDUM OPINION AND ORDER accepting and incorporating the 29 Findings and Recommendation of Magistrate Judge Tinsley; denying Petitioner's 11 Motion for Stay and Abeyance of Section 2254 Petition; granting Respondent's 18 Counter-M otion to Dismiss Certain Grounds of Section 2254 Petition; dismissing Grounds One, Four, Five, Six, Seven, Eight and Nine on the independent and adequate state law basis of procedural default; and leaving this matter to Magistrate Judge Tinsley for additional proceedings concerning Grounds Two and Three. Signed by Judge Robert C. Chambers on 9/30/2015. (cc: Magistrate Judge Tinsley; counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON
THOMAS TALBERT,
Petitioner,
v.
Case No. 3:14-cv-22222
MARVIN PLUMLEY, Warden,
Huttonsville Correctional Center,
Respondent.
MEMORANDUM OPINION AND ORDER
On July 11, 2014, Thomas Talbert (hereinafter “Petitioner”) filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 1) and a Memorandum of Law in support thereof
(ECF No. 2). This matter was assigned to the Honorable Dwane L. Tinsley, United States
Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”) for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the Court are the Petitioner’s
Motion for Stay and Abeyance of Section 2254 Petition (ECF No. 11), and the Respondent’s
Counter-Motion to Dismiss Certain Grounds of Section 2254 Petition (ECF No. 21).1 The
Magistrate Judge has submitted findings of fact (ECF No. 29) recommending that this Court deny
the Petitioner’s Motion for Stay and Abeyance of Section 2254 Petition (ECF No. 11) and grant
the Respondent’s Counter-Motion to Dismiss Certain Grounds of Section 2254 Petition (ECF No.
21), dismiss Grounds One, Four, Five, Six, Seven, Eight and Nine on the independent and adequate
1
Also pending are the Respondent’s Motion for Summary Judgment (ECF No. 19) and the Petitioner’s Cross-Motion
for Summary Judgment (ECF No. 23), which will be subsequently addressed by the Magistrate Judge in a separate
document.
state law basis of procedural default, and leave this matter referred to the Magistrate Judge for
additional proceedings concerning Grounds Two and Three.
Petitioner has filed objections to the PF&R for several reasons. In his first Objection,
Petitioner appears to claim that a Losh waiver2 should not apply as a procedural bar to pursue relief
on Grounds One, Four, Five, Six, Seven, Eight, and Nine because (1) Mr. Flesher, Petitioner’s
attorney, failed to explain the implications of Losh and failed to ensure that Petitioner raised all
claims he did not want to waive in his circuit court proceedings, (2) Petitioner never affirmatively
waived other Losh grounds on the record and a Losh list waiver form was not made a record of the
court, and (3) Judge Ferguson failed to allow Petitioner an opportunity to pursue any other claims
in a (second) “true omnibus hearing.” In essence, Petitioner is claiming that, regarding Losh, his
actions did not constitute a true and voluntary waiver and that the state court has not followed its
own rules/laws concerning state habeas procedure. He further asserts that even if the court relies
upon a lack of diligence to find that there is not adequate cause and prejudice to overcome the
procedural default, as the Magistrate Judge recommends, Petitioner should at least be permitted to
pursue Ground One because he addressed Ground One in his subsequent original jurisdiction
habeas proceeding with the Supreme Court of Appeals of West Virginia (“SCAWV”).
ANALYSIS
As explained by the Magistrate Judge, Petitioner failed to raise grounds One, Four, Five,
Six, Seven, Eight, or Nine in his section 2254 petition on either his direct appeal or his state habeas
appeal. Petitioner’s claims are therefore procedurally defaulted and he should be foreclosed from
pursuing relief on such claims in the federal courts. See Smith v. Murray, 477 U.S. 527 (1986).
Procedural default is an adequate and independent state law ground for dismissal by a federal court.
2
As set forth in in Losh v. McKenzie, 277 S.E.2d 606 (W. Va. 1981).
2
Bostick v. Stevenson, 589 F.3d 160, 164 (4th Cir. 2009). One exception to procedural default,
allowing review of a defaulted claim, can be established by showing cause for the default and
prejudice from the failure to review the claim. See Gray v. Netherland, 518 U.S. 152, 162 (1996).
In general, “cause” refers to “some objective factor external to the defense that impeded counsel’s
efforts” to comply with the State’s procedures. Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1999). “Prejudice” means that the alleged error
worked to the petitioner’s “actual substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” McCarver v. Lee, 221 F.3d 583, 592 (4th Cir. 2000) (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)); see also Wolfe v. Johnson, 565 F.2d 140, 158 n.27 (4th
Cir. 2009).
Here, Petitioner claims cause exists because he was denied a “true omnibus hearing” and
his Losh waiver was not knowing and voluntary. This argument is without merit. First, Petitioner
was provided a true omnibus hearing, in which his attorney, Mr. Flesher, raised the claims that
Petitioner had filed with the circuit habeas court. According to the Respondent’s Memorandum of
Law, the petitioner filed a pro se Amended Petition for a Writ of Habeas Corpus in the Circuit
Court of Cabell County on July 18, 2011. (ECF No. 17, Ex. 14).
The Amended Petition raised
the following grounds for relief:
1.
Invalid life recidivist sentence [based upon improper reliance on a
conviction in 2001 pursuant to a previous enactment of W. Va. Code 17C-5-2].
2.
Invalid life recidivist sentence [based on ineffective assistance of counsel
arising from trial counsel’s alleged failure to identify the State’s improper reliance
on the 2001 conviction].
(Id.). Mr. Flesher was then subsequently appointed as counsel for Petitioner and filed an Amended
Supplemental Memorandum in support of Petitioner’s habeas corpus petition. (ECF No. 17, Ex.
16). Mr. Flesher described the Petitioner’s claims as follows:
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Petitioner alleges the enhanced life sentence imposed by the Cabell County
Circuit Court on January 25, 2007, for third offense DUI pursuant to the recidivist
statute (W. Va. Code 61-11-18(c)) violates both his State and Federal Constitutional
rights (Article III, Section 4 of the West Virginia Constitution, and Article I,
Section 10 of the United States Constitution) as having been determined following
improper ex post facto application of the recidivist statute to a prior DUI conviction.
***
Petitioner raised in his Petition and in his Supplemental Petition herein filed the
Losh List allegation of the lack of competent and effective assistance of legal
counsel and representation. Without commenting or elaborating further, here, it
would appear that Petitioner’s counsel failed to timely raise the appropriate ex post
facto argument at the 2001 DUI sentencing, and, again at the 2006 DUI sentencing
phase trial, actions on Petitioner’s behalf, in hindsight, [which] appear to have been
in order to have adequately protected Petitioner’s rights and interests.
(Id. at 2).
After a hearing on March 22, 2012, which consisted almost solely of oral argument
concerning the Petitioner’s statutory claims, the circuit court denied the Petitioner habeas corpus
relief by Order entered on March 29, 2012. (ECF No. 17, Ex. 17). On June 14, 2012, the state
habeas court entered a “Final Order Denying Petitioner’s Writ of Habeas Corpus with Findings of
Fact and Conclusions of Law.” (ECF No. 17, Ex. 20). The habeas court found that W. Va. Code §
17C-5-2 was valid as applied to the Petitioner’s convictions, and that “Petitioner has offered no
evidence showing any of his numerous trial counsel were in anyway [sic; any way]
Constitutionally Ineffective.” (Id. at 1). The habeas court further found that “the petitioner has
failed to introduce any evidence on any other non-waived issue on his Losh List Waiver; all other
grounds waived by the petitioner for purposes of his Omnibus Hearing.” (Id. at 1-2). Petitioner
had an opportunity to appeal this decision to the SCAWV, which he did on July 3, 2012.
On June 28, 2013, the SCAWV issued a Memorandum Decision denying the Petitioner’s
habeas appeal. Talbert v. Ballard, No. 12-0798 (June 28, 2013); (ECF No. 17, Ex. 25). The Court
found that the circuit court properly denied habeas corpus relief on any other grounds not waived
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in the petitioner’s Losh list due to the fact that the petitioner failed to proffer “any evidence that
would support granting petitioner’s petition for writ of habeas corpus.” (Id. at 2). The
Memorandum Decision specifically found that there was “no reason for another hearing before the
circuit court.” (Id.) (emphasis added). As such, the omnibus hearing afforded to Petitioner has been
reviewed by the circuit court and the SCAWV. These courts have affirmed that a true omnibus
hearing was provided to Petitioner and this Court concurs.
To the extent Petitioner claims his Losh waiver was not knowing and voluntary, due to
ineffective assistance of counsel at the omnibus hearing, this Court agrees with the analysis of the
Magistrate Judge, finding that in order to determine that Petitioner’s claim is of the magnitude to
establish cause3 to overcome procedural default, a due diligence element is inherently required. In
other words, even if Petitioner could establish that the conduct of either the habeas court or his
habeas counsel constitutes cause for the procedural default of Grounds One, Four, Five, Six, Seven,
Eight and Nine of his section 2254 petition (due to the issues he raises regarding his Losh waiver),
Petitioner must also establish that he acted with diligence to present the defaulted claims. An
As noted in the PF&R, (ECF No. 29), the Magistrate Judge properly determined that some of Petitioner’s claims
potentially implicate the application of Martinez v. Ryan, 132 S.Ct. 1309 (2012). In Martinez, the Supreme Court
held that inadequate assistance of counsel at initial collateral review (habeas) proceedings may establish “cause” and
“prejudice” to overcome the procedural default of a claim of ineffective assistance of trial counsel. Here, Grounds
One, Four, Five, Six and Seven address ineffective assistance of the Petitioner’s trial counsel in his 2006 third
offense DUI trial, or the lack of counsel in his recidivist proceeding thereafter, and as such, Martinez could be
applicable. However, this Court agrees with the Magistrate Judge, that the Martinez decision does not automatically
render such claims reviewable in federal court. Rather, the petitioner must establish that his state habeas counsel
was, indeed, ineffective by failing to raise such claims, that the underlying claims of ineffective assistance of trial
counsel were substantial (that is, that they have “some merit”), and that the petitioner was prejudiced by the failure
to have the claims addressed in the state courts.
Here, Petitioner did successfully raise a ground of ineffective assistance of counsel (arising from trial
counsel’s alleged failure to identify the State’s improper reliance on the 2001 conviction) in his pro se habeas
proceedings which were then supplemented by Mr. Flesher in an additional memorandum. (ECF No. 17, Ex. 14, 16).
As such, this case is different than Martinez in that Petitioner’s habeas counsel did successfully raise a ground for
ineffective assistance of trial counsel, just not every ground of ineffective assistance of trial counsel Petitioner
allegedly wanted to raise. This detracts from any argument Plaintiff may have that Mr. Flesher was “ineffective” and
that Martinez should apply as a remedy. Furthermore, to the extent this failure could establish cause, Petitioner
failed to pursue these grounds with due diligence as is discussed infra.
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absence of reasonable diligence will defeat an assertion of cause and prejudice. See Hoke v.
Netherland, 92 F.3d 1350, 1354 n.1 (4th Cir. 1996). Here, Petitioner failed to assert Grounds One,
Four, Five, Six, Seven, Eight or Nine in his pro se filings that were filed while he was attempting
to obtain another omnibus hearing. Specifically, neither the “Letter of Notice of Intent to Raise
Specific Claims,” nor “the Supplement to Letter of Notice of Intent to Raise Specific Claims”
raised any of the claims addressed in Grounds One, Four, Five, Six, Seven, Eight and Nine of his
section 2254 petition. (ECF No. 17, Ex. 18, 19). Although the Petitioner asserted ineffective
assistance of his 2006 trial counsel in those documents, he failed to raise any of the specific bases
of ineffective assistance contained in the federal petition. Id.
Furthermore, to the extent Petitioner maintains that a procedural bar should not apply
because his Losh List was not made of record during his state habeas proceedings, a written waiver
form is not required. Although Losh v. McKenzie recommends a written form to enhance the
administrative efficiency of such proceedings, the court in Losh specifically stated, “[a]t the
conclusion of the hearing, the judge should enter a comprehensive order which addresses not only
the grounds actually litigated, but the grounds waived as well. Courts may employ whatever
method they choose to accomplish this comprehensive waiver. . . .” Losh v. McKenzie, 277 S.E.2d
606, 612 (W. Va. 1981). The circuit court adhered to this ruling when, after hearing oral argument
concerning Petitioner’s statutory claims, it entered an order stating in part:
The Court, having been advised that Petitioner’s Losh List grounds for habeas relief
are limited and restricted to claims of ineffective assistance of counsel relative to
his plea entered as a result of his 2001 DUI arrest and the Court’s lack of jurisdiction
relative to the 2001 sentencing Court having then considered and treated
Petitioner’s 1994 prior DUI arrest and subsequent conviction as a first offense DUI
when applying the recidivist statute at the time of sentencing thus resulting in the
2001 DUI conviction becoming an enhanced misdemeanor felony. As a result
thereof, the Court sentenced Petitioner following his 2006 jury trial conviction upon
a 2005 DUI arrest as a third-time offender, pursuant to the recidivist statute
resulting in a life with mercy sentence. The Petitioner has thus knowingly and
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intelligently waived any other Losh List grounds in the presentation of his Habeas
Petition for Relief presently before the Court.
On appeal, the SCAWV found that the circuit court properly denied habeas relief and that there
was “no reason for another hearing before the circuit court.” Talbert v. Ballard, No. 12-0798 (June
28, 2013) (emphasis added); (ECF No. 17, Ex. 25). As such, Petitioner has not established
sufficient cause/and or due diligence for Grounds One, Four, Five, Six, Seven, Eight, or Nine to
overcome procedural default.
Petitioner also asserted in his Objections that if the Court relies upon a lack of diligence to
find that there is not adequate cause and prejudice to overcome the procedural default, he should
at least be permitted to pursue Ground One because he addressed Ground One in his subsequent
original jurisdiction habeas corpus proceeding with the SCAWV. The Court does not agree with
this argument. This is because such efforts were made after the conclusion of a complete round of
state habeas proceedings, in which Petitioner could have attempted to pursue such a ground in the
circuit court in his pro se filings. Additionally, there is no conceivable ground for cause to excuse
the procedural default of Ground One in the context of its appearance in the original jurisdiction
habeas corpus proceedings with the SCAWV. Petitioner filed a Petition for a Writ of Habeas
Corpus under the original jurisdiction of the SCAWV on April 1, 2014. (ECF No. 17, Ex. 27). On
June 6, 2014, the SCAWV refused the Petitioner’s amended original jurisdiction habeas corpus
petition, without ruling on the merits or finding that such dismissal was with prejudice. State ex
rel. Talbert v. Plumley, No. 14-0336; (ECF No. 17, Ex. 31). Accordingly, this petition did not
exhaust the Petitioner’s state court remedies for the claims raised therein, and there is no
independent showing of cause to overcome Ground One’s procedural default in this context.
Accordingly, having reviewed de novo Petitioner’s Objections, the Court ACCEPTS and
INCORPORATES the Findings and Recommendations of the Magistrate Judge.
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CONCLUSION
For the reasons stated herein, Petitioner’s Motion for Stay and Abeyance of Section 2254
Petition (ECF No. 11) is DENIED, Respondent’s Counter-Motion to Dismiss Certain Grounds of
Section 2254 Petition (ECF No. 18) is GRANTED, Grounds One, Four, Five, Six, Seven, Eight
and Nine on the independent and adequate state law basis of procedural default are DISMISSED,
and this matter is left to Magistrate Judge Tinsley for additional proceedings concerning Grounds
Two and Three.
The Court DIRECTS the Clerk to send a copy of this Order to Magistrate Judge Tinsley,
counsel of record, and any unrepresented parties.
ENTER: September 30, 2015
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