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Daye v. Ballard

United States District Court, S.D. West Virginia, Beckley Division

September 18, 2017

CORNELL F. DAYE, Petitioner,
DAVID BALLARD, Warden, Respondent.



         The Court has reviewed the Petitioner's March 31, 2008[1] Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by Person in State Custody (Document 1), as amended by the Petitioner's Supplemental § 2254 Petition (Document 44) and supplemental Memorandum (Document 45). By Standing Order (Document 3), this matter was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge for submission of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. Upon Judge VanDervort's retirement, the matter was referred to the Honorable Omar J. Aboulhosn.

         On March 22, 2016, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 89), and on October 5, 2016, the Magistrate Judge submitted an Amended Proposed Findings and Recommendation (PF&R) (Document 93), wherein it is recommended that this Court grant the Respondent's motion for summary judgment, dismiss the Petitioner's petition, and remove this matter from the Court's docket. The Petitioner's Objections to the Magistrate's Proposed Findings and Recommendations (Document 91) were timely filed.[2]For the reasons stated herein, the Court finds that the objections should be overruled, and the PF&R should be adopted.


         The Magistrate Judge's PF&R fully explored the factual background and procedural history, and the Court hereby adopts those factual findings. The Court will provide a summary of the facts and procedural history herein. The Petitioner, Cornell F. Daye, was indicted in Raleigh County, West Virginia, on January 10, 2000, for one count of possession of crack cocaine with intent to deliver, second offense. On August 21, 2001, following a two-day jury trial, he was convicted. The next day, the State filed an information under West Virginia's habitual offender statute, W.Va. Code § 61-11-19, stating that the Petitioner had been convicted of three prior drug offenses. The State cited the August 21, 2001 conviction for possession with intent to deliver, a March 22, 1999 conviction for possession of a controlled substance with intent to deliver, and an April 28, 1998 conviction for possession of crack cocaine with intent to deliver. The court held a hearing on the Information, advising the Petitioner that he “could be sentenced to a period of life in the penitentiary, with the possibility of parole, ” if he admitted that he was the person convicted of the listed felonies. (PF&R at 2, citing Raleigh County Circuit Court Habeas Decision, Document 71-1, at 7) (hereinafter, State Habeas). The Petitioner admitted that he was the person convicted in the previous cases. On September 26, 2001, the Circuit Court sentenced the Petitioner to an indeterminate term of not less than two nor more than thirty years in prison, pursuant to W.Va. Code § 60A-4-408, which increases sentences for a second or subsequent controlled substance felony. At the initial sentencing hearing, the Circuit Court declined to impose a life sentence pursuant to the habitual offender statute, W.Va. Code § 61-11-18. The State filed a motion to correct sentence, arguing that W.Va. Code § 61-11-18 required a life sentence. On October 11, 2001, the Circuit Court re-sentenced the Petitioner to life in prison with the possibility of parole, pursuant to § 61-11-18.

         The Petitioner appealed to the West Virginia Supreme Court of Appeals, which denied the appeal. He filed a state habeas petition raising several grounds for relief, which was also denied. He appealed the denial of his habeas petition to the West Virginia Supreme Court, which affirmed that the sentence was legal, but remanded for consideration of remaining issues. The Circuit Court appointed counsel and gave the Petitioner the opportunity to amend his habeas petition and file a Losh list. The Circuit Court permitted limited discovery and held an omnibus hearing, and ultimately denied the petition in a lengthy order issued on August 16, 2013. The West Virginia Supreme Court affirmed the Circuit Court's decision on April 4, 2014.

         The Petitioner filed his federal habeas petition on March 31, 2008, within one year of the state Supreme Court's denial of relief as to the legality of the corrected life sentence, and requested that the petition be held in abeyance until resolution of the remaining state habeas claims. The Court stayed the case until May 6, 2014. The Respondent moved for summary judgment, and the parties completed briefing which included extensive state court records. The Magistrate Judge recommended granting the Respondent's motion for summary judgment, and the Petitioner filed timely objections.


         A. PF&R Objections

         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). When reviewing portions of the PF&R de novo, the Court will consider the fact that Plaintiff is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.1978).

         B. Motions Pursuant to 28 U.S.C. § 2254

         28 U.S.C. § 2254 provides for federal review of a state prisoner's petition for a writ of habeas corpus “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). Petitioners must exhaust all available state remedies. Id. § 2254(b)(1). Furthermore:

(d) 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 facts in light of the evidence presented in the State court proceeding.

Id. § 2254(d)(1)-(2). Factual determinations made by a state court are presumed correct, and petitioners must rebut that presumption by clear and convincing evidence. Id. § 2254(e)(1).

         Federal review of motions brought by state prisoners pursuant to 28 U.S.C. § 2252 is highly deferential. Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398 (2011); Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir. 2006). The Supreme Court explains that the “contrary to” clause of § 2254(d)(1) means that “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). The “unreasonable application” clause of that section means that “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id.

         “Under § 2254(d), a habeas court must determine what arguments or theories supported or…could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011); see also Wetzel v. Lambert, 132 S.Ct. 1195, 1199 (2012) (holding that habeas relief is unavailable unless “each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.” If a state court applied the appropriate legal standard in a reasonable manner, the federal court may not grant habeas relief even if it would have reached a different conclusion. Williams, 529 U.S. at 406. “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original).


         The Petitioner set forth several grounds for habeas relief, all of which the Magistrate Judge addressed. The Court will provide de novo review only as to the findings and conclusions to which the Petitioner addressed his objections: a jury instruction regarding intent; alleged Brady violations related to an informant's status; Eighth Amendment and Equal Protection claims; and the validity of the convictions for the predicate offenses underlying the recidivist sentence.

         A. ...

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