Opinion
Civil Action 3:17-CV-22
07-15-2021
HAROLD M. BILLITER, Petitioner, v. RALPH TERRY, Respondent.
GROH J.
REPORT AND RECOMMENDATION
JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This case was initiated on March 8, 2017, when the Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The Petitioner paid the $5.00 filing fee on April 24, 2017. ECF No. 11. On January 9, 2018, this case was stayed by order of the Court. ECF No. 31. The stay was lifted on June 15, 2021. ECF No. 53.
Accordingly, this case is before the undersigned for a report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure (LR PL P) 2, et seq., and 28 U.S.C. §§ 1915(e) and 1915(A).
II. FACTUAL AND PROCEDURAL HISTORY
A. Petitioner's Conviction, Sentence and Direct Appeal
The facts contained in Section I.A. are from the June 19, 2017, memorandum decision of the State of West Virginia Supreme Court of Appeals in that court's docket number 16-0340. http://www.courtswv.gov/supreme-court/memo-decisions/spring2017/16-0340memo.pdf Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of public record); Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the contents of court records.'”).
Petitioner is currently a State prisoner incarcerated in the Mount Olive Correctional Complex in Mount Olive, West Virginia. Petitioner was charged in Harrison County, West Virginia Circuit Court in an indictment returned in case number 10-F-83, with five counts of sexual abuse and assault, including of children. ECF No. 19-1. On December 7, 2010, Petitioner was found guilty by a jury of Counts 1 and 2, which charged sexual assault in the first degree and sexual abuse by a parent, guardian, custodian, or person in a position of trust. ECF No. 19-5. Petitioner was sentenced on May 18, 2011, to not less than 25 nor more than 100 years for his conviction for first degree sexual assault, and to not less than 10 nor more than 20 years for his conviction for sexual abuse by a parent, guardian, custodian, or person in a position of trust. ECF Nos. 19-5, 19-6.
Petitioner filed a notice of appeal with the Supreme Court of Appeals of West Virginia in that court's docket number 11-0941. ECF No. 19-7. Petitioner raised the following issues: (1) that the Circuit Court erred when it permitted V.R., a state witness, to be present in court during the testimony of her daughter, the alleged victim [ECF No. 19-8 at 15]; (2) that the Circuit Court erred when it admitted photos of a tractor without sufficient authentication [Id. at 17]; (3) that the Circuit Court erred when it limited defense questioning of State's witnesses [Id. at 19]; that the complaining child witness was inherently unbelievable and her testimony was insufficient to sustain a verdict [Id. at 23]; and (5) that the cumulative effect of these errors constituted an abuse of discretion by the Circuit Court and a violated Petitioner's due process rights [Id. at 26]. By Memorandum Decision filed May 29, 2012, the West Virginia Supreme Court of Appeals addressed all of Petitioner's raised grounds and affirmed Petitioner's conviction and sentence. ECF Nos. 19-11, 19-12.
The West Virginia Supreme Court of Appeals later designated this opinion as “Harold B. I” 2020 WL 5240400 at *1.
B. Petitioner's State Habeas Petitions
In Harrison County, West Virginia, Circuit Court case number 13-C-200-3, filed May 10, 2013, Petitioner sought habeas relief, alleging: 1) ineffective assistance of counsel; 2) use of incompetent witnesses at trial; 3) that witnesses were not sequestered at trial; 4) prosecutorial misconduct; 5) that his conviction was premised on false information; and 6) the trial court gave improper jury instructions. ECF No. 19-13 at 10. Petitioner's Losh list indicated that Petitioner did not waive claims related to ineffective assistance of counsel, Constitutional errors in evidentiary rulings, instructions to the jury, claims of prejudicial statements by the trial judge, claims of prejudicial statements by the prosecutor, sufficiency of evidence, and improper communications between the prosecutor and witnesses and the jury. ECF No. 19-14. On December 14, 2015, the Harrison County Circuit Court denied the petition for habeas corpus. ECF No. 19-16.
Losh v. McKenzie, 166 W.Va. 762 (1981).
On January 19, 2016, Petitioner filed a notice of appeal in the West Virginia Supreme Court of Appeals, docket number 16-0029. ECF Nos. 19-17, 19-18. Petitioner asserted that: (1) the prosecutor made prejudicial remarks during closing arguments, that the State failed to prove all the elements of the offense of first degree sexual assault, and that his due process rights were violated [ECF No. 19-19 at 8]; (2) the State failed to prove every element of the offense [Id. at 10]; (3) the combination of statutes and case law “although individually constitutional, together acted to deprive the Petitioner [of] a fair trial, [including] adequate confrontation of witnesses [ ] and due process of law [Id. at 11]. In the appeal filed, Petitioner raised only two grounds for relief: 1) that the alleged victim was incompetent to testify; and 2) that the prosecutor made improper remarks during closing. ECF No. 19-20. By Memorandum Decision issued September 19, 2016, the Supreme Court of Appeals affirmed the order of the Harrison County Circuit Court. ECF No. 19-23. Petitioner moved for rehearing by the Supreme Court of Appeals, which was denied by order entered November 6, 2016. ECF Nos. 19-24, 19-25.
The West Virginia Supreme Court of Appeals later designated this opinion as “Harold B. II” 2020 WL 5240400 at *2.
On September 28, 2018, Petitioner filed a petition for habeas corpus in the Circuit Court of Harrison County, in case number 18-C-146. ECF No. 40. On May 30, 2018, Petitioner appealed the denial of his habeas petition to the West Virginia Supreme Court of Appeals, in that court's docket 19-0524, in a case styled Harold B. v. Donnie Ames . 2020 WL 5240400. Appointed counsel filed an amended petition on August 15, 2018. On September 3, 2020, the Supreme Court of Appeals issued a memorandum decision which affirmed the circuit court's order. The memorandum decision summarized the arguments raised: (1) Petitioner received ineffective assistance of (a) trial counsel, (b) appellate counsel in his direct appeal, (c) habeas counsel in the first habeas proceeding, and (d) habeas counsel in his second habeas proceeding; because “his former attorneys failed to raise additional issues which should have been raised in the prior proceedings and failed to make additional arguments under those issues which were raised in the prior proceedings.” Id. at *2. The Court concluded that “all the issues related to petitioner's attorneys were waived or adjudicated” in Petitioner's two prior cases Harold B. I and Harold B. II. 2020 WL 5240400 at *4.
http://www.courtswv.gov/supreme-court/memo-decisions/fall2020/19-0524memo.pdf.
C. Instant Federal Habeas Petition
This case was initiated on March 8, 2017, by the pro se Petitioner who filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction and sentence in the Circuit Court of Harrison County, West Virginia. ECF No. 1. Petitioner raised six grounds for relief: (1) that the Circuit Court erred when it did not sequester a state witness, the child victim's mother, to be present when the child testified, in violation of the Fifth and Fourteenth Amendments [ECF No. 1 at 5]; (2) that the Circuit Court erred when it admitted photographs of a tractor without sufficient authentication of their relevance, in violation of the Fifth and Fourteenth Amendments [Id. at 7]; (3) that the Circuit Court erred when it limited defense counsel's questioning of the investigating officer and forensic interviewer of the child victim, in violation of the Fifth and Fourteenth Amendments [Id. at 8]; (4) that the child victim's testimony was “inherently unbelievable” and insufficient to support a jury verdict, in violation of the Fifth and Fourteenth Amendments [Id. at 9]; (5) that he received ineffective assistance of counsel, when his lawyer failed to: (a) object to certain testimony; (b) effectively cross examine the victim; and (c) to obtain an enhanced version of an exculpatory photo, in violation of the Fifth, Sixth and Fourteenth Amendments [ECF No. 1-1 at 1]; and (6) that the prosecutor made prejudicial statements to the jury, in violation of the Fifth and Fourteenth Amendments [Id. at 3].
On October 10, 2017, the Respondent filed an answer, a motion to dismiss and a memorandum in support of the motion to dismiss. ECF Nos. 19, 20, 21. In his answer, Respondent asserted that ground 5, related to ineffective assistance of counsel, was an unexhausted claim. ECF No. 19 at 2. In the motion and memo, Respondent asserted that the case should be dismissed because it contained both exhausted and unexhausted claims. ECF No. 21 at 8 - 12. Alternatively, Respondent argues that Petitioner's ineffective assistance of counsel claims are meritless because Petitioner abandoned those claims. Id. at 12 - 13.
Subsequently, the case was stayed on January 9, 2018, pending the resolution of Petitioner's attempts to exhaust his state remedies. ECF No. 31. On September 2, 2020, the Court issued an order to show cause why the case should remain stayed. ECF No. 45. On September 3, 2020, the Supreme Court of Appeals of West Virginia issued a memorandum decision which affirmed the Circuit Court of Harrison County. 2020 WL 2540400. Respondent filed a response to the order to show cause which argued that the stay should remain in place until the appeal became final with the issuance of a mandate by the Supreme Court of Appeals. ECF No. 47. Petitioner's response to the order to show cause also argued that the appeal was not final until the mandate issues. ECF No. 50. Petitioner sought rehearing before the Supreme Court of Appeals on October 1, 2020. ECF Nos. 51, 51-1. The Supreme Court of Appeals refused Petitioner's request for a rehearing on January 20, 2021. On January 22, 2021, the mandate issued from the Supreme Court of Appeals, making the memorandum decision previously issued final and certified. ECF No. 53-1. On June 15, 2021, the Court, sua sponte, lifted the stay of proceedings. On June 23, 2021, the Court issued another order to show cause which directed the Respondent to show cause why the motion to dismiss, based on failure to exhaust claims in state court before filing suit in federal court, should not be terminated as moot. ECF No. 54. Respondent filed a response to the order to show cause on June 24, 2021, which conceded that Petitioner has now exhausted his claims of ineffective assistance of counsel, and the motion is now moot. ECF No. 55.
http://www.courtswv.gov/supreme-court/order-lists/spring2021/Jan-20-2021.pdf.
III. LEGAL STANDARD
A. Pro Se Litigants.
Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.490 U.S. at 327.
The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
B. Petitions for Relief Under 28 U.S.C. § 2254
The provisions of 28 U.S.C. § 2254 must be examined to determine whether habeas relief is proper. Under 28 U.S.C. § 2254 a district court must entertain a petition for habeas corpus relief from a prisoner in State custody, but “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that 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) resulted in a decision that 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)(1) and (2); see also Williams v. Taylor, 120 S.Ct. 1495 (2000).
A petitioner can only seek § 2254 relief if he has exhausted the remedies available in state court, the corrective process is not available in state court, or the state process is ineffective to protect the petitioner. 28 U.S.C. § 2254(b).
A claim is generally considered to have been “adjudicated on the merits” when it is “substantively reviewed and finally determined as evidenced by the state court's issuance of a formal judgment or decree.” Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999). The “contrary to” and “unreasonable application clauses of § 2254)(1)(d) have separate and independent meanings. Williams v. Taylor, 529 U.S. 362, 364 (2000). A state court decision warrants habeas relief under the “contrary to” clause “if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to the Supreme Court's.” Lewis v. Wheeler, 609 F.3d 291, 300 (4th Cir. 2010) (quoting Williams, 529 U.S. at 405) (internal quotations omitted). A writ of habeas corpus may be granted under the “unreasonable application” clause if the state court “identifies the correct governing legal rule from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular case.” Id. at 300-01 (internal marks omitted). Therefore, the AEDPA limits the habeas court's scope of review to the reasonableness, rather than the correctness, of the state court's decision.
IV. ANALYSIS
Petitioner seeks the writ habeas corpus herein upon six grounds which have all previously been raised and decided in the Circuit Court of Harrison County, West Virginia, or the West Virginia Supreme Court of Appeals. Grounds 1 through 4 concern alleged errors of the Circuit Court during Petitioner's trial and were previously addressed by the Supreme Court of Appeals of West Virginia in its decision issued May 29, 2012. There, Petitioner claimed that that:
(1) the Circuit Court erred when it:
(a) permitted V.R., a state witness, to be present in court during the testimony of her daughter, the alleged victim;
(b) admitted photos of a tractor without sufficient authentication;
(c) limited defense questioning of State's witnesses; and
(2) that the complaining child witness was inherently unbelievable and her testimony was insufficient to sustain a verdict.ECF No. 19-11. However, the West Virginia Supreme Court of Appeals decision addressed all of Petitioner's raised grounds and affirmed Petitioner's conviction and sentence. In the instant habeas proceeding, Petitioner raises these same four grounds:
(1) Ground One: “Petitioner's [ ] rights have been violated when the Circuit Court erred in allowing V.R., a State [w]itness, to be present in the [c]ourtroom during the testimony of her daughter, J.R., the alleged victim.”
(2) Ground Two: “Petitioner's [ ] rights have been violated when the [Circuit] Court erred when it admitted photographs of a tractor and allowed testimony on the same without sufficient authentication.”
(3) “Petitioner's [ ] rights have been violated when the Circuit Court erred in sustaining the State's objections to petitioner's questioning of Sergeant Tige Pratt and Terri Walker.”
(4) “Petitioner's [ ] rights have been violated when the alleged victim J.R. was inherently unbelievable and her testimony was insufficient to support a jury verdict.”ECF No. 1 at 5, 7 - 9.
Further, Petitioner's fifth claim of ineffective assistance of counsel has also been previously adjudicated in state court. On February 10, 2015, the Harrison County Circuit Court held a hearing where Petitioner was the sole witness, and where the following issues were raised by Petitioner:
(1) Ineffective assistance of trial counsel;
(2) Constitutional errors in evidentiary rulings;
(3) Allegedly prejudicial statements by the prosecution;
(4) Sufficiency of the evidence; and
(5) Improper communication between an assistant prosecutor and a juror.2020 WL 2540400 at *2. In its memorandum decision issued September 19, 2016, the Supreme Court of Appeals of West Virginia affirmed the Circuit Court's decision and “adopt[ed] the ‘well-reasoned findings and conclusions' set forth therein.” Id., ECF No. 19-23. Additionally, Petitioner's claims that his habeas counsel and appellate habeas counsel provided him ineffective assistance have also been considered and rejected by the Supreme Court of Appeals. 2020 WL 2540400.
As to Petitioner's sixth claim, that the prosecutor made prejudicial statements to the jury, again, the claim has previously been adjudicated in state court. The first state habeas corpus claim, filed on May 10, 2013, claimed that there were “allegedly prejudicial statements [made] by the prosecution”. ECF No. 19-23 at 3. The Circuit Court rejected that claim by order entered in December of 2015, and affirmed by the Supreme Court of Appeals on September 19, 2016. ECF No. 19-23.
Accordingly, Petitioner is not, under the plain language of the statute, entitled to relief under 28 U.S.C. § 2254(d). All of Petitioner's six claims were previously adjudicated on the merits in state court proceedings, both in the Circuit Court and in the Supreme Court of Appeals. Pursuant to § 2254(d) such claims “shall not be granted.” Additionally, Petitioner has not articulated any grounds that would support relief under the “contrary to” or “unreasonable determination” exceptions found in subparagraphs (1) and (2). Petitioner has not shown any unreasonable application of federal law which occurred in the state proceedings, nor does he allege that the state court's adjudication resulted in a decision based on an unreasonable determination of the facts. Instead, Petitioner merely raises the same six claims that he has previously raised unsuccessfully in state court.
However, when the Supreme Court of Appeals of West Virginia considered Petitioner's state habeas corpus appeal on the merits, its denial of relief did not include any determination which is inconsistent with federal law or any decision of the Supreme Court of the United States. Because Petitioner fails to demonstrate that the decision of the state court is contrary to, or involves an unreasonable application of, clearly established federal law as determined by the Supreme Court, Petitioner has not established that he is entitled to relief pursuant to 28 U.S.C. §2254(d).
Even when a state court summarily rejects a claim and does not set forth its reasoning, the federal court reviews the record and clearly established Supreme Court law. Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), cert. denied, 534 U.S. 830 (2001). However, the federal court must still “confine [its] review to whether the court's determination ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'” Id. at 158 (quoting Bacon v. Lee, 225 F.3d 470, 478 (4th Cir. 2000)).
V. RECOMMENDATION
For the reasons set forth in this opinion, it is RECOMMENDED that the petition [ECF No. 1] for habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED WITH PREJUDICE, which should thereafter be dismissed from the docket.
It is further recommended that the Respondent's Motion to Dismiss based on failure to exhaust administrative remedies [ECF No. 20] be TERMINATED as MOOT.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, Chief United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.
The Clerk is directed to provide a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.