United States District Court, S.D. West Virginia, Huntington Division
December 19, 2016
MICHAEL E. BROWN, Petitioner,
DAVID BALLARD, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
Court entered a Judgment Order on March 31, 2016 granting
Respondent's Motion for Summary Judgment and denying
Petitioner's habeas corpus relief. ECF No. 23. On
November 16, 2016, Petitioner filed a Motion for
Reconsideration of Denial of Habeas Corpus Relief (ECF No.
24). The Court GRANTS IN PART and DENIES IN PART
Petitioner's Motion for Reconsideration, granting the
review of the two objections to the Magistrate Judge's
Proposed Findings and Recommendations (PF&R) but denying
a remand to the Magistrate Judge for a revised
report. This Court has conducted a de
novo review of the two additional objections raised,
including a thorough review of the underlying state court
documents regarding direct appeal and state habeas relief.
For the following reasons, the Court, again, DENIES
Petitioner's request for habeas relief originally raised
on January 28, 2015 (ECF No. 1).
Petitioner's habeas appeal results from a state court
criminal conviction, the Court is required to apply a
deferential standard of review as prescribed under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), codified in part at 28 U.S.C. § 2254(d).
See 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 objection challenges the Magistrate Judge's finding
that the issue of a thirteenth juror during deliberations was
not exhausted at the state level. See Proposed Findings
& Recommendations, ECF No. 20, at 44. Petitioner
argues that his claim against the thirteenth juror was fairly
presented to the Supreme Court of Appeals of West Virginia
during his direct appeal. Pet'r's Obj., ECF
No. 24, at 4. Within the direct appeal's brief,
Petitioner asserts his due process rights under the West
Virginia Constitution. Id. at 4-5. However,
Petitioner argues that in so doing, he cited numerous other
state cases, the United States Supreme Court, and the United
States Constitution, indicating that Petitioner was
challenging due process under both the state and federal
constitutions all along. Id. at 5.
exhaust a claim before the state court, the petitioner must
present the federal constitutional claim “face-up and
squarely.” Matthews v. Evatt, 105 F.3d 907,
911 (4th Cir. 1997) (“the federal question must
be plainly defined”) (emphasis added),
abrogation on other grounds recognized, United
States v. Barnett, 644 F.3d 192 (4th Cir. 2011).
“If state courts are to be given the opportunity to
correct alleged violations of prisoners' federal rights,
they must surely be alerted to the fact that the prisoners
are asserting claims under the United States
Constitution.” Duncan v. Henry, 513 U.S.
264, 365-66 (1995) (emphasis added). “A habeas
petitioner cannot simply apprise the state court of the facts
underlying a claimed constitutional violation; the petitioner
must also explain how those alleged events establish a
violation of his constitutional rights.” Mallory v.
Smith, 27 F.3d 991, 994 (4th Cir. 1994) (citations
omitted). The petitioner bears the burden to prove that all
claims have been exhausted. Id.
Court has reviewed the documents discussed in
Petitioner's objections de novo. Although
Petitioner asserts that pages 9 through 15 argue other state
cases and Supreme Court precedent, this analysis still
centers on the West Virginia Constitution and its Bill of
Rights. See Resp.'s Ex. 1, ECF No. 11-1, at
11-18. Petitioner's attorney used analogous case law from
other states in attempts to convince the Supreme Court of
Appeals of West Virginia that a thirteenth juror violated
Petitioner's due process rights as guaranteed under the
West Virginia Constitution. This is evidenced by the call for
“this Court, ” referring to the Supreme Court of
Appeals of West Virginia, to espouse the view that the state
constitution requires a jury of twelve, and not more. See
Id. at 17-18 (“the right to a twelve person jury
is an essential feature of a state constitutional
[right] of trial by jury”) (emphasis added). The brief
clearly identifies a state constitutional argument but does
not address any specific federal right that is also violated.
To allow the state court first opportunity to correct federal
constitutional violations, the allegations must be
“squarely” presented as a federal constitutional
issue. Therefore, as Petitioner's allegations regarding a
thirteenth juror do not meet these requirements, the Court
agrees with the Magistrate Judge's finding that the issue
is unexhausted before the state court and must be dismissed.
second objection challenges whether the vagueness of the
standard for a new trial dictated in State v.
Frazier, 253 S.E.2d 534 (1979) is also unexhausted as
the Magistrate Judge found. See Proposed Findings &
Recommendations, ECF No. 20, at 44. Petitioner points to
a section of Petitioner's Brief that questions the
court's application of the five prongs established in
State v. Frazier. Petitioner asked the court
“to consider whether [the fourth prong] … should
be contained in its current form.” See Resp.'s
Ex. 14, ECF No. 11-3, at 50. Petitioner suggested the
application of a “more sensible rule” rather than
allow a judge to reach a decision that should be left to the
jury. Id. However, none of this language contends
that the standard is too vague to be applied with
consistency. Rather, Petitioner's Brief suggests an
alternative method due to the prong's foundation in a
case that was 120 years old. Id. The section of the
brief cited by Petitioner in his objections is the only
arguable section that refers to vagueness in the standard.
However, that is not enough to exhaust the claim because
Petitioner failed to couch the argument as a federal question
presentable to the state court. Nothing in the cited section
asserts a federal constitutional right, a specific
constitutional provision, a federal case interpreting the
Constitution, or a state case that raises a pertinent
constitutional issue. See Martin v. Solem, 801 F.2d
324, 330 (8th Cir. 1986) (finding claim unexhausted when
presented only as “unconstitutional” without
Petitioner's objections point to arguments made to the
state court that could have been crafted as federal
constitutional violations, but they were not. Petitioner
cites sections that merely provide underlying facts, but
without a federal violation established, the issue has not
been fairly presented to the state court for adjudication.
This Court, thus, will not review either objection for its
merits. The Court agrees with the Magistrate Judge's
findings that both alleged constitutional violations were
unexhausted before the state court.
the Court reconsiders 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 because Petitioner has failed to show he was
denied a constitutional right. Accordingly, the Court denies
a certificate of appealability.
after reconsideration, the Magistrate Judge's PF&R
remains ACCEPTED AND INCORPORATED by this Court, this Opinion
and Order SUPPLEMENTS the Court's original order (ECF No.
22), the Petition is DISMISSED, and the Court DENIES a
certificate of appealability.
the Court finds that Petitioner's two additional
objections do not change the outcome of this Court's
decision. Although the Court GRANTS IN PART AND DENIES IN
PART Petitioner's instant Motion for Reconsideration (ECF
No. 24), the Court must again DENY Petitioner's original
Motion for Habeas Relief (ECF No. 1) and DENY a certificate
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented parties.
 A district court does not have to
review de novo the sections of a Magistrate
Judge's Proposed Findings and Recommendations that a
party fails to file an objection. See Thomas v. Arn,
474 U.S. 140, 155 (1985); see also United States v.
Schronce, 727 F.2d 91 (1984). However, nothing in the
Thomas decision precludes a district court from
reviewing the Magistrate Judge's report. See Scott v.
Tate, 130 F.Supp.2d 924, 926-27 (N.D. Ohio 2001). In an
effort to give Petitioner's arguments the fullest
consideration, the Court will review the additional