Brown v. Ballard

Filing 22

MEMORANDUM OPINION AND ORDER overruling Petitioner's 21 objections, accepting and incorporating the 20 Findings and Recommendations of the Magistrate Judge, granting Respondent's 11 MOTION for Summary Judgment, dismissing the 1 petition and denying a certificate of appealability. Signed by Judge Robert C. Chambers on 3/31/2016. (cc: Magistrate Judge Aboulhosn, attys; any unrepresented parties) (mkw)

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

MICHAEL E. BROWN,
Petitioner,
v.

CIVIL ACTION NO. 3:15-01197

DAVID BALLARD, Warden,
Respondent.
MEMORDANDUM OPNION AND ORDER
Pending is a motion for summary judgment brought by Respondent David Ballard
(“Ballard”), a prison warden, on prisoner Michael E. Brown’s (“Brown”) petition for the writ of
habeas corpus. ECF No. 11. This action was referred to the Honorable Omar J. Aboulhosn, United
States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for submission to this Court of
proposed findings of fact and recommendation for disposition (“PF&R”). The Magistrate Judge
has submitted a PF&R concluding that Respondent’s motion for summary judgment should be
granted and the petition denied. PF&R, ECF No 20. Petitioner timely objected to the PF&R.
Written Objections to PF&R, ECF No. 21 [hereinafter Obj.]. For the following reasons, the Court
OVERRULES Petitioner’s objections, ACCEPTS and INCORPORATES herein the findings
and recommendations of the Magistrate Judge, GRANTS Respondent’s motion for summary
judgment, DISMISSES the petition without issuing a certificate of appealability.
This Court conducts a de novo review of those portions of the magistrate judge’s proposed
findings and recommendations to which a party objects. 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.”). The
Court, however, 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 recommendations
to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).1
Petitioner’s habeas appeal from a state court criminal conviction also requires this Court to
apply a deferential standard of review required under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), codified in part at 28 U.S.C. § 2254(d). Monroe v. Angelone,
323 F.3d 286, 297 (4th Cir. 2003). Under AEDPA, a federal court must defer to a state court's
resolution of a claim that has been “adjudicated on the merits” and federal habeas relief is
unavailable unless the state court’s decision (1) 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) 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). This showing is no easy task for
Petitioner.
First, Petitioner objects to the Magistrate Judge’s conclusion that the decision of the West
Virginia Supreme Court, which found no violation of Petitioner’s Sixth Amendment right to an
impartial jury based on a juror’s failure to disclose that her son was a criminal defendant in another
case pending before the state trial-level judge in Petitioner’s case, was not contrary to clearly

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Petitioner does not contest the factual findings made by the Magistrate Judge, only the Magistrate
Judge’s legal conclusions. Finding support in the record for the Magistrate Judge’s factual
conclusions, the Court adopts the factual findings relevant to Defendants’ motion for summary
judgment as presented in the PF&R. PF&R at 1–13.
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established federal law. Upon de novo review, the Court finds the Magistrate Judge’s analysis and
conclusion are error-free.
In his Objection, Petitioner contends he satisfied the second and third prongs of the test for
determining if an individual is entitled to a new trial based upon juror impartiality. The Supreme
Court set forth the test for determining if an individual must be granted a new trial due to juror
impartiality in McDonough Power. The Fourth Circuit has interpreted McDonough Power as
effectively requiring a three-part test, under which the petitioner must show: (1) a juror failed to
answer honestly a material question posed in voir dire, (2) a correct response would have provided
a valid basis for a challenge for cause, and (3) the fairness of the petitioner’s trial was affected
either by the juror's motives for concealing the response or the reasons that affect the juror's
impartiality. Conaway v. Polk, 453 F.3d 567, 585 (4th Cir. 2006) (citing McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)). Under the second prong, a challenge for
cause would be granted only if the juror’s response showed actual or implied bias. Jones v. Cooper,
311 F.3d 306, 312 (4th Cir. 2002).
Here, Juror Brenda Wickline failed to respond to a voir dire question asking if any potential
juror had a family member who was a defendant in a criminal case. In the state habeas proceeding,
Juror Wickline explained the Petitioner’s trial was her first interaction with “the law,” and she did
not respond to this question because she believed the term defendant referred to an individual who
had been convicted of, and not simply accused of, committing a crime. PF&R at 25 n.4. Because
her son was then only accused of a crime, she believed he was not a defendant. Id. The West
Virginia Supreme Court found there was nothing in the record to discredit Juror Wickline’s
testimony and that she was not actually biased. Id. at 25. Petitioner argues in his Objection,

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nevertheless, that bias should be implied here because of Juror Wickline’s connection to the parties
in Petitioner’s criminal trial.
The Magistrate Judge considered and properly rejected Petitioner’s implied bias argument.
PF&R at 25–26. Bias is implied only in “extreme situations” where it is “highly unlikely that the
average person could remain impartial” in deliberating under the circumstances, Person v. Miller,
854 F.2d 656, 664 (4th Cir. 1988), such as when the juror is an employee of the prosecuting agency,
a close relative of a trial participant, was formerly a juror in the same case, or a witness to or
involved with the criminal transaction, Conner v. Polk, 407 F.3d 198, 206 (4th Cir. 2005) (citation
omitted); see also Smith v. Phillips, 455 U.S. 209, 223 (1982) (O'Connor, J., concurring); id. at
232 (Marshall, J., dissenting) (recounting past examples of when juror bias has been presumed).
Although Juror Wickline’s son had a criminal charge pending in another case before the judge
presiding over Petitioner’s criminal trial, the average person could remain impartial deliberating
under such circumstances. A verdict against Petitioner would gain nothing for Juror Wickline’s
son in his criminal case, as her son and Petitioner were not co-defendants and their cases had no
bearing upon each other. No evidence compels the conclusion that Juror Wickline had improper
motive in her deliberations as a juror in Petitioner’s case. As troubling as it sounds that a juror
failed to disclose that she had a son whose criminal charge was pending in another case heard by
the Petitioner’s trial judge, this alone does not support presuming the juror was biased. For this
reason, the Magistrate Judge properly declined to presume Juror Wickline was biased.
Accordingly, the Magistrate Judge correctly concluded that Petitioner failed to meet the second
prong of McDonough Power’s impartial juror test because he failed to show an honest response
would have provided a valid basis for a challenge for cause.2

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Petitioner also contends that the state court and Magistrate Judge’s PF&R decisions constitute
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Petitioner also contends he satisfied the third part of the test for obtaining a new trial due
to juror impartiality. The third prong requires showing the fairness of the petitioner’s trial was
affected either by the juror's motives for concealing the response or the reasons that affect the
juror's impartiality. Conaway, 453 F.3d at 585. Assuming Juror Wickline was actually biased based
on her son being a defendant in another case before the same judge, there is no evidence on the
record that her reason for not disclosing information about her son affected the fairness of
Petitioner’s trial. Juror Wickline did not conceal facts in order to serve on the jury. See Conaway,
453 F.3d at 588. Instead, she failed to respond to the voir dire question because she misunderstood
it, an explanation credited by the West Virginia Supreme Court. Other evidence indicates she failed
to err on the side of caution by answering yes to the question because she felt intimidated about
her son coming before the trial judge and felt ashamed by her son’s situation. PF&R at 19, 26.
Petitioner presents no evidence sufficient to contradict Juror Wickline’s reasons for her nondisclosure; nor does he offer evidence that she had a motive for not disclosing this information.
Nor does Petitioner explain how Juror Wickline’s reasons for not responding to the voir dire
question—namely misunderstanding the question and feeling embarrassed and ashamed of her
son—could have affected the fairness of Petitioner’s trial. See Jones, 311 F.3d at 313. There is no
evidence Juror Wickline’s ignorance of legal terms or her embarrassment and shame for her son,

an “unreasonable application of the facts” in view of the evidence presented. Obj. at 2. To show a
state court’s decision to deny relief was based on an unreasonable determination of facts in light
of the evidence presented in the state court proceeding, the petitioner must rebut by clear and
convincing evidence a presumption that the state court’s factual determination was correct. See 28
U.S.C. §§ 2254(d)(2), 2254(e)(1). Petitioner’s Objection cites no portion of the record in support
of his claim that the state court’s factual determinations made during inquiry into Juror Wickline’s
bias were unreasonable. To the extent that any facts in this record could support Petitioner’s
2254(d)(2) challenge, he has not carried his burden of showing by clear and convincing evidence
the state court’s determination that an honest response by Juror Wickline about her son’s case
pending before the judge in Petitioner’s criminal trial would have been a valid basis for a challenge
for cause.
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the reasons she failed to respond honestly to voir dire, affected the fairness of Petitioner’s trial. As
such, Petitioner fails the third prong of the Sixth Amendment test for obtaining a new trial due to
juror impartiality. For these reasons, the Magistrate Judge properly concluded the West Virginia
Supreme Court’s decision that Petitioner’s Sixth Amendment rights were not infringed based on
Juror Wickline’s non-disclosures about her son during voir dire was not contrary to federal law.
Second, Petitioner objects to the Magistrate Judge’s conclusion that the West Virginia
Supreme Court decision rejecting Petitioner’s Brady claim was not contrary to, or an unreasonable
application of, clearly established federal law. In his state habeas appeal, and now in his federal
habeas attack, Petitioner excoriates as a Brady violation the prosecution’s failure to disclose to him
during the underlying criminal proceeding certain items of evidence about his co-defendant and
the State’s lead witness against him, Mr. Matthew Fortner. Specifically, the State did not disclose
to Petitioner records about Mr. Fortner’s being a victim of sexual abuse, his mental health
treatment afterward, and his drug rehabilitation records. Obj. at 3. Reviewing the PF&R de novo,
the Court finds the Magistrate Judge’s analysis and conclusion free of error.
“[T]he suppression by the prosecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). To state a Brady
claim, the Petitioner must show the evidence is: (1) “favorable to the accused, either because it is
exculpatory, or because it is impeaching”; (2) the “evidence must have been suppressed by the
State, either willfully or inadvertently”; and (3) the evidence must have been material to the verdict
such that its suppression prejudiced the defense. Strickler v. Greene, 527 U.S. 263, 281-82 (1999);
see also Monroe, 323 F.3d at 299-300. For evidence to be material, there must be “a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would

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have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation omitted). A “reasonable
probability” is a lesser standard than the preponderance standard, and a reasonable probability of
a different result is shown when the suppression of evidence “undermines confidence in the
outcome of the trial.” Id. The question of materiality must be considered “collectively, not item by
item.” Id. at 436.
Applying Brady’s progeny, the West Virginia Supreme Court found the evidence of Mr.
Fortner’s mental health records was neither exculpatory, nor suppressed by the prosecution, nor
material. Brown v. Coleman, No. 14-0134, 2014 WL 6607517, at *4 (W. Va. Nov. 21, 2014),
available at ECF No. 1–2 at 17–18; PF&R at 33. The court found this evidence immaterial “in
light of the fact that Petitioner had the opportunity to examine Mr. Fortner regarding his criminal
and mental health history.” Brown, 2014 WL 6607517, at *4), available at ECF No. 1–2 at 17–18.
The West Virginia Supreme Court’s decision finding the evidence at issue immaterial was
not contrary to, or an unreasonable application of, clearly established federal law. Assuming
Petitioner could show the evidence about Mr. Fortner’s sexual abuse, mental health treatment, and
drug rehabilitation was favorable to Petitioner and suppressed by the State, Petitioner cannot show
the West Virginia Supreme Court misapplied Brady’s materiality prong. The materiality prong
requires showing the suppression of evidence prejudiced the defense. See, e.g., Monroe, 323 F.3d
at 299–300. Here, Petitioner maintains he would have used the supposedly suppressed evidence to
impeach Mr. Fortner. The record indicates Petitioner, during his underlying criminal trial,
thoroughly cross examined Mr. Fortner regarding Mr. Fortner’s journal entries, mental health
concerns, history of drug and alcohol abuse, prior drug convictions, admission to rehabilitation,
and multiple inconsistent statements Mr. Fortner made about the murders. See PF&R at 38 (listing

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portions of record). 3 Thus, Petitioner is not claiming the supposedly suppressed documents
contained any substantial additional information giving rise to grounds for impeaching Mr. Fortner
that Petitioner did not already have at trial. Instead, Petitioner generically asserts that he would
have used the documents to impeach Mr. Fortner.
But Petitioner does not allege how he would have further impeached Mr. Fortner. Petitioner
is not arguing Mr. Fortner’s responses on cross examination were inconsistent with facts contained
in the evidence at issue, making the documents inapplicable for impeaching Mr. Fortner by prior
inconsistent statement or contradiction. Looking to the other impeachment methods, it is unclear
how Petitioner would have been able to use the evidence at issue to impeach Mr. Fortner beyond
the extent to which Petitioner already did by cross examining him on the facts contained in the
supposedly suppressed evidence. Thus, it is unclear how, if at all, Petitioner could have used the
evidence at issue to impeach Mr. Fortner. In asking if the evidence was material, the Court must
consider if there was a reasonable probability that, had the evidence been used for impeachment
purposes, the result of the proceeding would have been different. Kyles, 514 U.S. at 434.
Considering the Petitioner’s other opportunities to impeach Mr. Fortner and the
unexplained utility of the documents as impeachment tools, a court could reasonably conclude the
evidence at issue was not material because even if the evidence had been disclosed to the Defense,
it is not reasonably possible that the result of the proceeding would have been different in light of
the mountain of other impeachment evidence already admitted against Mr. Fortner. “A sporting
theory of justice might assume”4 Petitioner could have swayed the Jury to discredit Mr. Fortner,
beyond the extent to which it already did, using a magic bullet found in the supposedly suppressed

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The state trial court correctly deemed irrelevant the evidence that Mr. Fortner was sexually
abused. PF&R at 38.
4
Brady, 373 U.S. at 90.
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documents. But on habeas appeal under 28 U.S.C. § 2254(d), that is not for this Court to decide.
The West Virginia Supreme Court reviewed the documents supporting Petitioner’s Brady claim
and ruled the evidence was not material because it would have been duplicative of what Petitioner
already obtained by cross examining Mr. Fortner. For the reasons above, the state court’s decision
was not contrary to, or an unreasonable application of, clearly established federal law. Therefore,
the West Virginia Supreme Court decision denying Petitioner’s Brady claim must remain
undisturbed by this collateral attack.
Lastly, the Court considers 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. 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; Petitioner has failed to show he was denied a constitutional right.
Accordingly, the Court denies a certificate of appealability.
To conclude, the Court OVERRULES Petitioner’s objections, ACCEPTS and
INCORPORATES herein the findings and recommendations of the Magistrate Judge, GRANTS
Respondent’s motion for summary judgment, DISMISSES the Petition, and DENIES a certificate
of appealability.
The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to
Magistrate Judge Aboulhosn, counsel of record, and any unrepresented parties.
ENTER:

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March 31, 2016