United States District Court, N.D. West Virginia
RICHARD B. MCNEMAR, Petitioner,
MARVIN PLUMLEY, Warden, Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT'S
MOTION TO DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF
M. KEELEY UNITED STATES DISTRICT JUDGE
December 28, 2015, the petitioner, Richard B. McNemar
(“McNemar”), filed a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus
(“Petition”) (Dkt. No. 1). Pursuant to 28 U.S.C.
§ 636 and LR PL P 2, the Court referred the case to the
Honorable James E. Seibert, United States Magistrate Judge,
for initial review. Thereafter, the respondent, Warden Marvin
Plumley (“Plumley”), filed a motion to dismiss
the Petition as procedurally barred (Dkt. No. 20).
20, 2016, Magistrate Judge Seibert entered a Report and
Recommendation (“R&R”), which recommended
that the Court grant Plumley's motion to dismiss and deny
and dismiss the Petition (Dkt. No. 26). McNemar filed timely
objections to the R&R (Dkt. No. 28). For the reasons that
follow, the Court ADOPTS the R&R (Dkt. No. 26), GRANTS
Plumley's motion to dismiss (Dkt. No. 20), and DENIES and
DISMISSES the Petition WITH PREJUDICE (Dkt. No. 1).
2008, a grand jury in Harrison County, West Virginia,
indicted McNemar on various sexual molestation charges
involving the granddaughter of McNemar's girlfriend (Dkt.
No. 19-5 at 44). Following a trial in the Circuit Court of
Harrison County, West Virginia (“Circuit Court”),
a jury convicted McNemar of one count of sexual abuse in the
first degree and one count of sexual abuse by a parent,
guardian, custodian, or person in a position of trust (Dkt.
No. 19-1 at 10). Following the conviction, McNemar filed a
motion for a new trial and a motion for a post-verdict
judgment of acquittal. The Circuit Court denied both motions,
id. at 52, and on April 23, 2009, sentenced McNemar
to concurrent terms of imprisonment totaling 10-20 years.
Id. at 10.
then retained attorney Thomas G. Dyer (“Dyer”) to
represent him on his direct appeal. Although Dyer filed a
notice of appeal on May 20, 2009, id. at 20-25, he
never actually filed an appeal on McNemar's behalf.
Instead, he advised McNemar to pursue his “chief, if
not sole complaint, ” of ineffective assistance of
trial counsel as a habeas petition. Id. at 33.
August 21, 2009, McNemar filed a pro se petition for
a writ of habeas corpus in the Circuit Court. That court then
appointed Dyer to assist McNemar, after which Dyer filed an
amended petition raising the following issues: insufficient
indictment, coerced confession, suppression of helpful
evidence, perjured testimony, transcript falsification,
unfulfilled plea bargain, ineffective assistance of counsel,
failure to provide a copy of the indictment, defects in the
indictment, non-disclosure of grand jury minutes, refusal to
turn over witness notes, erroneous evidentiary rulings,
prejudicial statements, sufficiency of the evidence, and
mistaken advice of counsel. Id. at 47-51.
Circuit Court in Harrison County held an omnibus hearing to
address the issues in the amended petition on March 31 and
April 1, 2010. Id. at 48. In a comprehensive 31-page
order, the Circuit Court denied McNemar's amended
petition. Id. at 76. In the course of doing so, it
specifically concluded that, having been “cautioned . .
. at the outset of the hearing that any grounds not raised in
[the] hearing would be deemed waived, ” McNemar had
waived all grounds not raised in the petition. Id.
at 75. McNemar appealed these rulings to the Supreme Court of
Appeals of West Virginia (“Supreme Court of
Appeals”), which affirmed the Circuit Court's
rulings in a memorandum decision dated November 30, 2012
(Dkt. No. 19-2 at 79).
March 14, 2013, McNemar filed a second habeas petition in the
Circuit Court, asserting twelve additional grounds for relief
(Dkt. No. 19-3 at 4). In his petition, McNemar alleged that his
habeas counsel, Dyer, had misadvised him not to take a direct
appeal, had failed to frame certain issues as constitutional,
and had not effectively examined witnesses during the omnibus
hearing. Id. at 16, 20, 23. In the remaining
grounds, he alleged that Dyer had been ineffective as habeas
counsel for failing to raise certain alleged instances of
trial error and ineffective assistance of trial counsel. The
Circuit Court appointed Jason T. Gain (“Gain”) to
represent McNemar. Although Gain filed an amended petition,
id. at 50, McNemar, acting pro se, filed a
supplement to that petition, in which he alleged additional
examples of Dyer's ineffectiveness as habeas counsel.
McNemar further complained that Gain had failed to include in
the amended petition all the claims he wished to exhaust in
state court (Dkt. No. 19-4 at 2-37).
an omnibus hearing held on November 19, 2014, the Circuit
Court denied McNemar's second petition. Id. at
45-51. The court concluded that Dyer had provided effective
assistance during the first habeas proceeding, and that
McNemar's other claims were barred by waiver or res
judicata. Id. at 47. Following McNemar's
appeal, the Supreme Court of Appeals affirmed these rulings
in a memorandum decision dated November 6, 2015. Id.
at 49, 54.
The § 2254 Petition
December 28, 2015, McNemar filed a § 2254 Petition in
this Court, claiming to have exhausted his state remedies and
asserting two grounds for relief (Dkt. No. 1). As his first
ground, McNemar claimed that Dyer, whom he had first retained
to represent him on direct appeal, had provided ineffective
assistance on appeal by advising McNemar “that he had
no viable or non-frivolous issues on appeal[, ] and it would
be best to proceed on a Writ of Habeas Corpus.”
Id. at 6. More particularly, McNemar contended that
Dyer should have raised arguments concerning jury bias and
improper jury instructions on direct appeal, rather than
present weaker arguments on collateral attack. Id.
at 7. As his second ground, McNemar asserted that Dyer had
provided ineffective assistance as habeas counsel by failing
to ask “the Circuit Court for a continuance in order to
supplement the argument that the State withheld [an]
interview report from Petitioner's trial counsel.”
Id. at 10-11.
Respondent's Answer and Motion to Dismiss
January 26, 2016, Magistrate Judge Seibert directed the
respondent, Plumley, to show cause on the limited issue of
timeliness (Dkt. No. 13). After receiving an extension of
time, Plumley filed his answer on March 21, 2016, in which he
conceded that the Petition was timely filed and that McNemar
had successfully exhausted his state remedies (Dkt. No. 19 at
2-13). Plumley also filed a motion to dismiss the Petition
(Dkt. No. 20) on the basis that McNemar was procedurally
barred “from raising his claims in the guise of an
ineffective assistance claim, when in fact they were no more
than ordinary trial error” (Dkt. No. 21 at 2). He
further argued that 28 U.S.C. § 2254(i) precluded
McNemar from asserting the ineffective assistance of his
state habeas counsel as a ground for relief. Id. at
that McNemar would rely on Martinez v. Ryan, 566
U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911
(2013), to argue that his claim of ineffective assistance of
habeas counsel allows the Court to address an otherwise
procedurally defaulted claim, Plumley contended that those
cases were inapplicable because they involved underlying
claims for ineffective assistance of trial counsel
(Dkt. No. 21 at 2-4). In response, McNemar asserted that
Plumley “is attempting to confuse this Court with [his]
facile response by not mentioning that Petitioner has stated
his appellate counsel was ineffective. . . . Respondent is
leaving out that Petitioner's habeas counsel (appointed
by the Court), was also his direct appellate counsel”
(Dkt. No. 24 at 3).
bottom, McNemar's argument before Magistrate Judge
Seibert was that both Martinez and Trevino
should apply to his case because the allegedly ineffective
assistance of his habeas counsel prevented him from raising
the jury bias and instruction issues on direct appeal.
Id. at 3-5. Further, he contended that the
Brady violation asserted as his second ground should
overcome any procedural bar because it meets the “cause
and prejudice” and “miscarriage of justice”
standards for doing so. Id. at 5-6.
R&R and Objections
R&R, Magistrate Judge Seibert recommended that the Court
grant Plumley's motion to dismiss and deny the Petition
(Dkt. No. 26 at 5). He concluded that § 2254(i)
precluded McNemar's claim that Dyer was ineffective in
his role as habeas counsel. Further, he agreed with Plumley
that neither Martinez nor Trevino provides
a pathway for McNemar to overcome any procedural bar to his
arguments. Id. at 4-5. McNemar objected to the
R&R on May 31, 2016, contending that Martinez
applies to his case, and that he is actually innocent (Dkt.
STANDARDS OF REVIEW
Pro Se Pleadings
Court must liberally construe pro se pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe
v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A
pro se complaint is subject to dismissal, however,
if the Court cannot reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail. Barnett
v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A
court may not construct the plaintiff's legal arguments
for him, nor should it “conjure up questions never
squarely presented.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Report and Recommendation
reviewing a magistrate judge's R&R, the Court need
review de novo only those portions of the R&R to
which an objection is timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation as to which no objection has
been made unless they are “clearly erroneous.”
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
28 U.S.C. § 2254, the Court may only entertain an
application for a writ of habeas corpus from a state prisoner
“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). “[I]f a claim
is exhausted in state court and not procedurally defaulted,
then it was adjudicated on the merits and subject to review
under . . . § 2254(d).” Gray v. Zook, 806
F.3d 783, 798 (4th Cir. 2015). A court may not grant a writ
regarding a claim “adjudicated on the merits in State
court” unless the adjudication:
(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;
(2) resulted in a decision that was based on an unreasonable
determination of facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d). In addition, “[t]he
ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section
2254.” Id. § 2254(i).