United States District Court, S.D. West Virginia, Beckley Division
CORNELL F. DAYE, Petitioner,
DAVID BALLARD, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed the Petitioner's March 31,
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.
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.For the reasons stated herein, the Court
finds that the objections should be overruled, and the
PF&R should be adopted.
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
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).
Motions Pursuant to 28 U.S.C. § 2254
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. §
(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;
(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).
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.
§ 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).
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