Daugherty v. Huttonsville Correctional Center

Filing 170

MEMORANDUM OPINION AND ORDER: The Court ORDERS that the Respondent's 167 Objections to the Magistrate Court's December 2, 2015 Order be OVERRULED, that the Magistrate Judge's 166 Proposed Findings and Recommendation be ADOPTED, an d that the Respondent's 162 Motion to Dismiss, Directed to the District Court, Petitioner's Habeas Petition, as Petitioner is no Longer in State Custody be DENIED; to the extent that Respondent's 167 Objections to the Magistrate Co urt's December 2, 2015 Order was an appeal of the Magistrate Judge's August 4, 2015 136 Order, August 17, 2015 141 Order, and December 2, 2015 165 Order, the Court ORDERS that it be DENIED; the Court ORDERS that this matter is REFERRED to the Honorable Omar J. Aboulhosn for further proceedings. Signed by Judge Irene C. Berger on 2/29/2016. (cc: Magistrate Judge Aboulhosn; attys; any unrepresented party) (slr)

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

TONY DAUGHERTY,
Petitioner,
v.

CIVIL ACTION NO. 5:12-cv-00043

HUTTONSVILLE CORRECTIONAL CENTER,
Respondent.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Respondent’s Objections to the Magistrate Court’s December
2, 2015, Order (Document 167), the Petitioner’s Response to Respondent’s Objections to the
Magistrate Court’s December 2, 2015 Order (Document 169), the Magistrate Judge’s December
2, 2015 Order (Document 165), and the Magistrate Judge’s Proposed Findings and
Recommendation (PF&R) (Document 166), as well as the underlying briefing. For the reasons
stated herein, the Court finds that the Respondent’s appeal to the Magistrate Judge’s order should
be denied, the Respondent’s objections to the PF&R overruled, and the Magistrate Judge’s PF&R
adopted.1
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
This case was initiated with a Petition (Document 1) filed on December 6, 2011, which
was supplemented with a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person

1 This matter was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, until he submitted
the PF&R on December 2, 2015. Magistrate Judge VanDervort has since retired, and the matter will be referred to
the Honorable Omar J. Aboulhosn following issuance of this opinion.

in State Custody (Document 6) on December 16, 2011. The Petitioner alleges jury prejudice in
his trial, ineffective assistance of counsel, and that the State of West Virginia failed to provide him
with trial transcripts. In a Proposed Findings and Recommendation (PF&R) (Document 111)
filed on October 30, 2014, Magistrate Judge VanDervort found that the “actions and omissions”
of the Petitioner’s former counsel “constitute[d] extraordinary circumstances justifying equitable
tolling of the Section 2244(d)(1) statute of limitations” and recommended that this Court deny the
Respondent’s motion for summary judgment based on the statute of limitations. (10/30/14 PF&R
at 31.) The Respondent did not object to the PF&R, and the Court filed a Memorandum Opinion
and Order (Document 117) adopting the PF&R on November 20, 2014.2
Because counsel was appointed for the Petitioner, the Magistrate Judge entered an order
permitting the Petitioner to file an amended petition. (11/21/14 Order) (Document 119.) The
Petitioner sought and received a series of extensions while attempting to compile his case file and
records. He then sought leave to conduct discovery in order to obtain a complete trial transcript,
which had apparently not been filed during the Petitioner’s state appellate and habeas proceedings,
in part because the Petitioner’s prior attorney waived the right to receive it. The Petitioner
explained that obtaining a transcript was challenging because of the court reporter’s alleged
unreliability, noting that she filed affidavits falsely stating that the transcripts had been filed.
(Documents 131, 132, 134, 135.) The Magistrate Judge granted the motions and entered an order
requiring the Respondent to “provide Petitioner access to the original record of the Petitioner’s
trial in the format in which Court Reporter [Veronica] Bird recorded it and make Court Reporter

2 The Respondent filed a “response” to the PF&R, noting disagreement with the legal conclusions contained
therein, but waiving the right to object. (Document 115.)

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Bird available for deposition as Petitioner may request at Respondent’s expense.” (8/04/15 Order
at 3-4) (Document 136.)
The Respondent filed Respondent’s Objections to Petitioner’s Motion for Leave to
Conduct Discovery and the Subsequent August 4, 2015, Order Directing Respondent to Bear the
Costs of Discovery, and Respondent’s Incorporated Motion to Reconsider (Document 137).
Therein, the Respondent requested a motion hearing and contended that the Petitioner had failed
to offer any evidence beyond speculation that the trial transcripts were incomplete or inaccurate.
The Respondent requested the transcripts be reviewed for potential deficiencies and compared to
any audio tapes prior to any further discovery and that the Petitioner, with his federally appointed
counsel, be required to fund his own discovery. Magistrate Judge VanDervort held a hearing on
August 13, 2015, and subsequently denied the Respondent’s motion for reconsideration. (8/17/15
Order) (Document 141.)
On September 10, 2015, the Respondent filed a status report indicating that the original
audio tapes recorded by the court reporter had “apparently been lost, misplaced or destroyed.”
(Status Report at 1) (Document 154.) The Respondent further contends that the transcripts appear
to be complete. The Petitioner filed a response, together with a supporting affidavit, asserting
that his former spouse had testified at his trial, yet her testimony did not appear in the transcript.
(Document 156.) He seeks to depose the court reporter.
On November 20, 2015, the Respondent filed the Respondent’s Motion to Reconsider,
Directed to the District Court, the Magistrate Court’s August 4, 2015, Order Granting Discovery,
and the Magistrate Court’s August 17, 2015, Order Denying Respondent’s Motion for
Reconsideration (Document 160), the Respondent’s Motion for Stay, Directed to the District

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Court, of the Magistrate Court’s August 4, 2015, Order Granting Discovery, and the Magistrate
Court’s August 17, 2015, Order Denying Respondent’s Motion for Reconsideration (Document
161), the Respondent’s Motion to Dismiss, Directed to the District Court, Petitioner’s Habeas
Petition, as Petitioner is no Longer in State Custody (Document 162), and the Respondent’s
Omnibus Memorandum of Law in Support of His Motion to Reconsider, Motion for Stay, and
Motion to Dismiss (Document 163). Although the Respondent “directed” the motions to the
District Court, the standing order of reference entered on January 10, 2012, provided that this
matter be referred to the Magistrate Judge for total pretrial management and submission of
proposed findings of fact and recommendations for disposition. (Document 14.) Accordingly,
the Magistrate Judge entered an order denying the motion to reconsider and the motion to stay
(Document 165) and a PF&R recommending that this Court deny the motion to dismiss (Document
166). The Respondent has appealed the denial of the motions to reconsider and stay. (Document
167.)
STANDARD OF REVIEW
The parties have opposing positions with respect to the standard of review.

The

Respondent urges the Court to consider its arguments de novo. It asserts that its motions for
reconsideration, to stay, and to dismiss were made before the district court under 28 U.S.C. §
636(b)(1)(A) and Local Rule of Civil Procedure 72.1(a). The Petitioner emphasizes the differing
procedures and standards of review applicable to a magistrate judge’s rulings on non-dispositive
matters, as opposed to those applicable to a magistrate judge’s proposed findings and
recommendations on dispositive motions.

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28 U.S.C. § 636(b)(1)(A) provides that district judges “may reconsider any pretrial matter
[decided by a magistrate judge] where it has been shown that the magistrate judge’s order is clearly
erroneous or contrary to law.” Thus, the Magistrate Judge’s rulings on the Respondent’s motions
for reconsideration and to stay related to discovery matters are subject to review under a clearlyerroneous standard.
Dispositive motions may be referred to a magistrate judge for submission of proposed
findings of fact and recommendations for disposition. 28 U.S.C. § 636(b)(1)(B)-(C). This Court
“shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the
Court 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 recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a party “makes general and conclusory objections
that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Thus, any portion of
the Magistrate Judge’s PF&R, addressing the Respondent’s motion to dismiss, to which the
Respondent has specifically objected must be reviewed de novo. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
A. Appeal of Order Denying Reconsideration and Stay
The Respondent contends that it has “furnished both the Magistrate Court and Petitioner
with a full and accurate transcript” and argues that, given the completeness of the transcript, the
Petitioner’s “claim that his ex-wife testified at trial [is] affirmatively impossible.” (Obj. at 3.) It
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argues that the Magistrate has ordered the West Virginia Office of the Attorney General to “fund
the entirety of Petitioner’s fishing expedition” for discovery outside the scope of the Petitioner’s
appeal and state habeas proceedings. (Id. at 4.) The Magistrate Judge denied the motion for
reconsideration, explaining that his order would not permit discovery beyond that necessary to
ensure that the Petitioner receives a complete and accurate transcript. Although the majority of
the Petitioner’s transcript was not filed until 2013, after the Petitioner’s state habeas proceedings
were completed, the Magistrate Judge found good cause to permit limited discovery, so as to
ensure that the Petitioner’s federal habeas petition is based on a complete and accurate record.
The Court finds that the Magistrate Judge’s August 4, 2015 Order (Document 136) and
subsequent post-hearing Order (Document 138) entered on August 17, 2015 are supported by the
facts and evidence.3 The Magistrate Judge found that Court Reporter Veronica Bird had sworn
that she had filed a complete copy of the trial transcripts on February 1, 2006. However, the
transcripts were not on file as of February, 2012. (8/17/15 Order at 1-2) (Document 141.) Ms.
Bird finally filed transcripts approximately six months after the West Virginia Supreme Court
issued an order directing her to show cause why a writ commanding her to produce the transcripts
should not be issued. (Id. at 1-2.) Further, Ms. Bird filed an affidavit listing dates on which she
was the court reporter for the Petitioner’s trial, and those dates do not entirely match the dates of
the transcripts she ultimately filed. (Id. at 2.) The Magistrate Judge also noted the Petitioner’s
allegation that the transcripts do not contain the testimony of a defense witness.4 In ordering that

3 The Magistrate Judge fully corrected any error or prejudice resulting from entering the August 4, 2015 order prior
to the expiration of the response deadline without notifying the Respondent by promptly holding a hearing and entering
a new order on August 17, 2015, after consideration of the Respondent’s position.
4 The Court cannot credit the Respondent’s circular logic that the transcripts are complete, and so any evidence of
incompleteness is impossible. Under the circumstances presented here, the Court cannot properly reach a conclusion
until the parties have had an opportunity to present evidence.

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the Respondent’s motion to reconsider his order be denied, the Magistrate Judge emphasized that
“[i]t is of the upmost importance that Petitioner has a complete and accurate copy of his criminal
trial transcripts.” (8/17/2015 Order at 4) (Document 141.)
Given those facts, the Court cannot find the Magistrate Judge’s order directing the
Respondent to provide the Petitioner with access to the original record of the Petitioner’s trial in
the format in which it was recorded to be clearly erroneous or contrary to the law. Nor is the
Magistrate Judge’s order requiring that Ms. Bird be made available for a deposition if necessary
contrary to the law. Such a deposition merely serves to assist the Petitioner’s efforts to access the
original records of the trial and to ascertain the accuracy and completeness of the transcripts on
file. Contrary to the Respondent’s somewhat hyperbolic assertion that, under the Magistrate
Judge’s order, the “Petitioner has carte blanch to fish for whatever beneficial information, if any
beneficial information even exists, he so desires, to formulate new claims to bring before this
Honorable Court in his federal review of State habeas proceedings,” the discovery ordered by the
Magistrate Judge is narrowly limited in scope to the issues surrounding the trial transcript.
(Respondent’s Omnibus Mem. at 16) (Document 163.)
The Respondent relies on Cullen v. Pinholster, 563 U.S. 170 (2011), for the proposition
that new evidence may not be introduced for the first time in a federal habeas proceeding under 28
U.S.C. § 2254. The Magistrate Judge concluded that Pinholster is inapposite to the instant issue,
and that finding is not clearly erroneous. Pinholster involved an attempt to gather new evidence
of a petitioner’s mental state, not presented either at trial or during the state habeas proceedings,
to re-litigate the penalty phase of trial. Here, far from introducing new evidence, the Petitioner
seeks only an accurate transcript of his trial. The Court can find no fault with the Magistrate

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Judge’s finding that there is good cause in this case, in accordance with Rule 6(a) of the Rules
Governing Section 2254 Proceedings, to permit narrowly constrained discovery necessary to
ensure that the parties and the Court may rely on an accurate and complete transcript.
The Respondent raises several practical concerns related to the anticipated deposition of
Ms. Bird. First, it worries that the Petitioner’s court-appointed attorney will receive payment
from both the Respondent and the federal government for time spent related to the deposition.
The Court is confident that the Magistrate Judge would be prepared to resolve such an issue, should
it arise. Next, the Respondent argues that the Magistrate Judge improperly ordered the West
Virginia Attorney General’s Office to pay for discovery and deposition that would take place under
the control of the Petitioner, and would violate state law governing bidding and acquisitions of
services.5 The Magistrate Judge’s order merely directed that the Respondent “provide Petitioner
access to the original record of the Petitioner’s trial in the format in which Court Reporter Bird
recorded it and make Court Reporter Bird available for deposition as Petitioner may request at
Respondent’s expense.” (8/04/15 Order at 3-4) (Document 136.) The Magistrate Judge did not
provide any direction with respect to the details of the deposition or the manner in which the
Respondent must pay for it. The Court expects counsel to work cooperatively to finalize such
matters within the bounds of state law.
B. Motion to Dismiss and Objections to the PF&R
The Respondent argues in its motion to dismiss that the Court will lack jurisdiction over
the anticipated amended petition, as (a) the Petitioner has now been released from state custody

5 The Respondent suggests that the Magistrate Judge directed the West Virginia Attorney General’s Office to pay the
costs associated with the deposition, though it is not a party but merely the agency directed to handle state habeas
matters. The Magistrate Judge directed the “Respondent” to bear the costs without stating that the funds should come
from any specific state agency.

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and (b) any new claims added to the amended petition would not have been exhausted in the state
court habeas proceedings. The Magistrate Judge recommended that the motion to dismiss be
denied, explaining that the Petitioner was in state custody when he filed his Section 2254 Petition,
and his release does not divest the Court of jurisdiction or prohibit amendment of the Petition.
Further, the Magistrate Judge indicated that any arguments, that certain claims that the Respondent
speculates could be included in the anticipated amended petition are moot or unexhausted, are
more properly made after the amended petition has been filed. The Respondent’s objections focus
on the discovery issues discussed above. To the extent those discovery issues overlap with the
issues presented in the motion to dismiss, the Court will construe the Respondent’s filings as
objections to the PF&R.
The Respondent objects to continued discovery in light of the anticipated post-release
amendment of the Petition and to discovery of any unexhausted claims. The Petitioner filed his
original petition in 2011, well before his release. He was therefore “incarcerated….at the time
the petition was filed, which is all the ‘in custody’ provision of 28 U.S.C. § 2254 requires.”
Spencer v. Kemna, 523 U.S. 1, 7 (1998). Any moot or unexhausted claims may be challenged
after they have been made. The Court cannot issue an advisory opinion related to the content of
any amended petition prior to the filing of such a petition. Accordingly, the Respondent’s
objections to the PF&R must be overruled.
CONCLUSION
WHEREFORE, following thorough review and careful consideration, the Court ORDERS
that the Respondent’s Objections to the Magistrate Court’s December 2, 2015, Order (Document
167) be OVERRULED, that the Magistrate Judge’s Proposed Findings and Recommendation
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(Document 166) be ADOPTED, and that the Respondent’s Motion to Dismiss, Directed to the
District Court, Petitioner’s Habeas Petition, as Petitioner is no Longer in State Custody
(Document 162) be DENIED. To the extent the Respondent’s Objections to the Magistrate
Court’s December 2, 2015, Order (Document 167) was an appeal of the Magistrate Judge’s August
4, 2015 Order (Document 136), August 17, 2015 Order (Document 141), and December 2, 2015
Order (Document 165), the Court ORDERS that it be DENIED.
Finally, the Court ORDERS that this matter be REFERRED to the Honorable Omar J.
Aboulhosn for further proceedings. The Court DIRECTS the Clerk to send a certified copy of
this Order to Magistrate Judge Aboulhosn, to counsel of record, and to any unrepresented party.

ENTER:

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February 29, 2016