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McNemar v. Plumley

United States District Court, N.D. West Virginia

March 24, 2017

MARVIN PLUMLEY, Warden, Respondent.



         On 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).

         On May 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).

         I. BACKGROUND

         A. State Proceedings

         In May 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.

         McNemar 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.

         On 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.

         The 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).

         On 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).[1] 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).

         Following 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.

         B. The § 2254 Petition

         On 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.[2] 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.

         C. Respondent's Answer and Motion to Dismiss

         On 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 1-2.

         Anticipating 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).

         At 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.

         D. R&R and Objections

         In his 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. No. 28).


         A. Pro Se Pleadings

         The 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).

         B. Report and Recommendation

         When 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).


         Under 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; or
(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).

         A. ...

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