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Lively v. Ballard

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

September 21, 2017

CHARLES JASON LIVELY, Petitioner,
v.
DAVID BALLARD, Respondent.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON UNITED STATES DISTRICT JUDGE.

         Before the Court are Respondent's Motion for Summary Judgment, (ECF No. 36), and Petitioner's Motion for Summary Judgment, [1] (ECF No. 40), on Petitioner's Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (“the § 2254 Petition”).[2] This matter was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of proposed findings and a recommendation for disposition (“PF&R”). (See ECF No. 31.) On July 12, 2017, Magistrate Judge Aboulhosn submitted a PF&R recommending that the Court grant Respondent's Motion for Summary Judgment and deny Petitioner's Motion for Summary Judgment. (ECF No. 44.) Petitioner filed timely objections to the PF&R on July 31, 2017. (ECF No. 48.) For the reasons that follow, the Court OVERRULES Petitioner's objections, and DISMISSES the § 2254 Petition.

         I. BACKGROUND

         On November 21, 2006, Petitioner was convicted upon a jury verdict of first degree murder with recommendation for mercy[3] and first degree arson. (See ECF No. 23-12 at 7.) Petitioner had previously pled guilty to petit larceny in exchange for the dismissal of burglary and grand larceny counts. Thereafter, the trial court sentenced Petitioner to life in prison with mercy and a consecutive one-year term of imprisonment for the petit larceny conviction. (See ECF No. 23-13 at 18.)

         The complete factual and procedural history of Petitioner's direct appeal and habeas proceeding in state court, as well as a review of Petitioner's claims in his federal habeas petition, are set forth in detail in the PF&R and need not be repeated here.[4] The Court will provide a discussion of any relevant facts from Petitioner's original criminal case as necessary throughout this opinion to resolve Petitioner's objections. The § 2254 Petition claims the following grounds for relief:

1. The West Virginia Supreme Court of Appeals erred in holding that trial counsel was effective despite a comprehensive failure to safeguard the petitioner's rights or to subject the State's case to adversarial testing.
2. The West Virginia Supreme Court of Appeals erred in holding that appellate counsel was effective despite explicitly noted failures which foreclosed multiple grounds for relief entirely.
3. The West Virginia Supreme Court of Appeals erred in holding that the intimidation of a witness by an officer of the trial court does not rise to the level of a constitutional violation and did not deprive the petitioner of due process.
4. The West Virginia Supreme Court of Appeals erred in holding that the prosecuting attorney's suborning of the intimidation of a witness by an officer of the trial court does not rise to the level of a constitutional violation and did not deprive the petitioner of due process.
5. The West Virginia Supreme Court of Appeals erred in holding that the prosecuting attorney's refusal to disclose the identity of an informant was not a breach of his affirmative duties under Brady v. Maryland.
6. The West Virginia Supreme Court of Appeals erred in holding that the failure of the trial judge to recuse himself from the proceedings, despite his longstanding personal and political relationships with the alleged victim, did not deprive the petitioner of due process.
7. The West Virginia Supreme Court of Appeals erred in holding that the admission into evidence of testimony regarding the statement of an unidentified, unavailable informant was not a violation of the Confrontation Clause.

(ECF No. 20 at 6.) The PF&R thoroughly analyzes each of Petitioner's claims as argued in the motions for summary judgment, and it recommends that this Court grant Respondent's Motion for Summary Judgment, (ECF No. 36), deny Petitioner's Motion for Summary Judgment, (ECF No. 40), and dismiss this matter from the Court's docket.

         II. LEGAL STANDARDS

         A. Review of Magistrate Judge's Findings and Recommendations

         Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court must determine de novo any part of a magistrate judge's disposition to which a proper objection has been made. 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). Failure to file timely objections constitutes a waiver of de novo review and the petitioner's right to appeal this Court's order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). 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).

         B. Habeas Corpus Standard of Review

         A federal court may grant habeas relief for a state prisoner “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). “Therefore, when a petitioner's claim rests solely upon an interpretation of state case law and statutes, it is not cognizable on federal habeas review.” Weeks v. Angelone, 176 F.3d 249, 262 (4th Cir. 1999), aff'd, 528 U.S. 225 (2000).

         Section 2254(d), as modified by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides for a deferential standard of review to be applied to any claim that was “adjudicated on the merits” in state court proceedings. In such a case, a federal court may grant habeas relief only if the adjudication of the claim in state court

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

28 U.S.C. § 2254(d).

         Section 2254(d)(1) describes the standard of review to be applied to claims challenging how the state courts applied federal law. “A federal habeas court may issue the writ under the ‘contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). “The court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case.” Id. The latter inquiry focuses on whether the state court's application of clearly established federal law was “unreasonable, ” as distinguished from whether it was “correct.” See Renico v. Lett, 559 U.S. 766, 773 (2010); Bell, 535 U.S. at 694; Williams v. Taylor, 529 U.S. 362, 410 (2000).

         Section 2254(d)(2) describes the standard to be applied to claims challenging how the state courts determined the facts. “[A] determination of a factual issue made by a State court [is] presumed to be correct, ” and the petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The phrase ‘adjudication on the merits' in section 2254(d) excludes only claims that were not raised in state court, and not claims that were decided in state court, albeit in a summary fashion.” Thomas v. Taylor, 170 F.3d 466, 475 (4th Cir. 1999); see also Harrington v. Richter, 562 U.S. 86, 98 (2011) (recognizing that § 2254(d) applies even if the state court issued a summary decision unaccompanied by an explanation). The state court determination will be upheld so long as “fairminded jurists could disagree” on its correctness. Yarbrough v. Alvarado, 541 U.S. 652, 664 (2004).

         C. Summary Judgment

         Federal Rule of Civil Procedure 56 governs motions for summary judgment. That rule provides, in relevant part, that summary judgment should be granted if “there is no genuine issue as to any material fact.” Summary judgment is inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When construing such factual issues, the Court must view the evidence “in the light most favorable to the [party opposing summary judgment].” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). “When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks omitted) (citation omitted). The court will consider each motion individually, “tak[ing] care to resolve all factual disputes and any competing rational inferences in the light most favorable to the party opposing that motion.” Id. (internal quotation marks omitted) (citation omitted). The nonmoving party may not rest on the pleadings alone and must show that specific material facts exist by offering more than a mere “scintilla of evidence” in support of his position. Anderson, 477 U.S. at 252.

         III. DISCUSSION

         Beyond the general objection to the PF&R's “recommendation that a grant of summary judgment be awarded to the Respondent, ” (ECF No. 48 at 2-3), Petitioner lodges thirteen specific objections to the PF&R.

         A. Ineffective Assistance of Counsel

         Petitioner makes several objections to the PF&R regarding ineffective assistance of counsel (“IAOC”) both at the trial and appellate levels. These objections relate to the PF&R's conclusion that Respondent is entitled to summary judgment as to Grounds 1 and 2 of the § 2254 Petition. (See ECF No. 48 at 3-8; ECF No. 20 at 7-16.) Insofar as Petitioner raises any IAOC claim in his objections for the first time, the Court declines to review such habeas claims that should have been raised in the § 2254 Petition. United States v. Humphreys, 194 F.3d 1306, *1 (4th Cir. 1999) (unpublished table disposition) (finding a district judge did not abuse its discretion when it refused to consider a claim raised for the first time in objections to the magistrate judge's recommendation); see also Samples v. Ballard, 860 F.3d 266, 276 (4th Cir. 2017) (finding that this Court properly exercised its discretion in declining to hear a habeas claim raised for the first time in the petitioner's objections to the PF&R).

         Petitioner must overcome two layers of deference for the Court to sustain his IAOC objections. First, the Supreme Court's pronouncement in Strickland accords to his counsel a “highly deferential” level of judicial scrutiny. Strickland v. Washington, 466 U.S. 668, 689 (1984). Courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .” Id. The burden falls to Petitioner to demonstrate otherwise. See Id. at 690 (“A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.”). If counsel made a “strategic choice” after “thorough investigation of law and facts, ” the act is “virtually unchallengeable.” Id. Acts or omissions not determined to be strategic-either because they were not adequately informed or they were not conscious decisions at all-are still analyzed by an objective reasonableness standard. See Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); Kimmelman v. Morrison, 477 U.S. 365, 375, 386 (1986).

         If the reviewing court determines under this deferential standard that counsel's action fell outside the accepted range of professionally reasonable conduct, the challenger must also show that he was prejudiced by the errors-that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. In addressing IAOC claims, courts may address either issue-counsel's performance or prejudice from the alleged error-first, since a finding adverse to the petitioner on either issue is dispositive. See Id. at 697 (“There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of [the] claim on the ground of lack of sufficient prejudice, . . . that course should be followed.”).

         In addition to this deferential standard, § 2254 petitioners making IAOC claims must show that the reviewing state court applied Strickland unreasonably. See Elmore v. Ozmint, 661 F.3d 783, 856-66 (4th Cir. 2011). The Supreme Court has noted that “[t]he standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted) (citations omitted) (noting that “[s]urmounting Strickland's high bar is never an easy task” and that “[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult”). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. Ultimately, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         1. Communication and Investigation

         First, Petitioner objects to the PF&R's conclusion that trial counsel engaged in an adequate investigation and communicated effectively with Petitioner. The PF&R finds that Respondent was entitled to summary judgment on this ground. (See ECF No. 44 at 19-22.)

         This argument was originally raised by Petitioner in his state habeas petition, (see ECF No. 23-3 at 4-5, 16-18), for which the Circuit Court of McDowell County conducted an evidentiary hearing that included testimony from Petitioner's trial counsel, Mr. Floyd A. Anderson. (See ECF No. 23-4 at 102-41.) In its ruling, the circuit court noted the Strickland standard and summarized Mr. Anderson's testimony that “he had adequate time to investigate and prepare for trial, employed an experienced investigator to investigate this case, [and] discussed his pretrial and trial decisions in advance with petitioner including petitioner's decision to refuse a plea bargain and take his case to trial . . . .” (ECF No. 23-5 at 3-4.) On appeal, the WVSCA held the following:

Petitioner's argument regarding a deficient investigation lacks specificity sufficient to allow us to evaluate this claim. However, we note that at the evidentiary hearing, Mr. Anderson testified that he hired an investigator who “investigated at least ten different people” and that, of those ten, Mr. Anderson personally spoke with six or seven, including speaking with Mr. Salyers several times. He also testified that he met petitioner in jail between five and fifteen times and spoke with him on the phone, as well. Based on the lack of specificity in petitioner's argument and the record before this Court, we cannot find that the circuit court erred in determining that petitioner did not carry his heavy burden of showing that he received ineffective assistance related to his counsel's investigation.

(Id. at 93.) Accordingly, 28 U.S.C. § 2254(d) applies, and the question becomes whether the state court's adjudication of Petitioner's communication- and investigation-based IAOC claim “was an unreasonable application” of Strickland or involved an unreasonable determination of the facts in light of the evidence presented. See § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011) (“The rule and analytical framework announced by the Supreme Court in Strickland ‘unquestionably qualifies as “clearly established” federal law under § 2254(d).'” (quoting Frazer v. South Carolina, 430 F.3d 696, 703 (4th Cir. 2005))).

         With regard to counsel's level of communication, Petitioner objects “on the basis that the record indicates the Petitioner's frequent frustration with counsel's lack of communication, and the failure of trial counsel to address this frustration.” (ECF No. 48 at 3.) Counsel must communicate with clients and obtain consent as to the recommended course of action regarding fundamental issues, such as “pleading guilty, waiving a jury, taking the stand, and appealing a conviction or sentence . . . .” United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (citing Florida v. Nixon, 543 U.S. 175, 187 (2004)). Despite counsel's duty to consult and communicate with his client regarding these “important decisions, ” Strickland, 466 U.S. at 688, federal law “does not require counsel to obtain the defendant's consent to ‘every tactical decision.'” See Nixon, 543 U.S. at 187 (quoting Taylor v. Illinois, 484 U.S. 400, 417-18 (1988)). These tactical matters are better “left to the sound judgment of counsel.” See id.

         As to Petitioner's claim regarding counsel's investigation leading up to trial, Petitioner objects on the basis that trial counsel “fail[ed] to in any way involve the Petitioner in the investigation process or to provide him with the fruits of the supposed investigation.” (ECF No. 48 at 3.) Under Strickland, counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. . . . [A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” 466 U.S. at 691. If counsel “conducts a reasonable investigation of law and facts in a particular case, his strategic decisions are ‘virtually unchallengeable.'” Powell v. Kelly, 562 F.3d 656, 670 (4th Cir. 2009) (quoting Strickland, 466 U.S. at 688). To prevail on an IAOC claim based on a failure to investigate, a petitioner must specify “what an adequate investigation would have revealed . . . .” Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990).

         Petitioner's two-sentence objection lodges no specific allegations of how the state court decision was an unreasonable application of federal law, nor does it explain how the state court made an unreasonable determination of the facts. (See ECF No. 48 at 3.) During the evidentiary hearing in state court, Mr. Anderson testified as follows regarding his investigation of the case and communication with Petitioner:

Q. And during the course of [] trials, do you routinely engage an investigator?
A. Yes, I do.
Q. In Mr. Lively's trial, did you engage an investigator?
A. Yes, I did.
Q. And who was your investigator?
A. That was Harold Wolfe.
. . .
Q. During the course of this case, how many times did you visit Mr. Lively while he was incarcerated?
A. I can't tell you exactly how many times, but it was -- it was several times, and I also spoke with him on the phone, and I also spoke with his mother.
Q. Several? Would that several be five, ten, twenty?
A. I'm going to say somewhere between maybe five and fifteen . . . at least that many.

(ECF No. 23-4 at 104-05.) Mr. Anderson continued to testify that Mr. Wolfe investigated “at least ten different people, ” six or seven with whom Mr. Anderson personally spoke. (Id. at 108-09.) Mr. Anderson stated that he spoke with one of those witnesses, Brian Salyers, “at least three or four times.” (Id. at 109.) In addition, Mr. Anderson testified that he believed he did everything Petitioner asked him to do, had adequate time to investigate and prepare for the trial, and discussed with Petitioner the strategy and tactics used in preparing for trial. (Id. at 124; see also Id. at 129.) Mr. Anderson stated at the hearing that he felt there was nothing Petitioner asked him to do that he did not do and that he felt he “had adequate contact with [Petitioner] in an effort to prepare for the trial.” (Id. at 119, 124.) Petitioner's state and federal habeas petitions provide no more than repeated general allegations regarding counsel's lack of communication with Petitioner and efforts to engage in a meaningful investigation or explore possible defenses. (See ECF No. 20 at 8-9; ECF No. 23-3 at 4, 16-17; ECF No. 23-5 at 41; ECF No. 40 at 4.) Despite these allegations, Petitioner provides no evidence contradicting Mr. Anderson's testimony at the evidentiary hearing regarding counsel's communication and investigation.[5]

         Given the testimony of Petitioner's attorney and lack of evidence to the contrary, the Court does not find that the state court unreasonably applied the Strickland standard or made an unreasonable determination of the facts. Mr. Anderson hired an investigator who interviewed many people; Mr. Anderson himself followed up with the majority of those people; and Mr. Anderson regularly discussed the investigation with Petitioner, including trial strategy. The record does not reflect a significant breakdown of communication between Petitioner and his counsel, and there is no evidence of a total lack of communication imperiling Mr. Anderson's ability to defend Petitioner adequately. Petitioner also does not specify what an “adequate investigation would have revealed . . . .” See Bassette, 915 F.2d at 940-42. This Court agrees with the state court's ruling that Petitioner “did not carry his heavy burden of showing that he received ineffective assistance related to his counsel's investigation.” (ECF No. 23-5 at 93.) Thus, the state court's decision was not contrary to, and did not involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor did it make an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

         Accordingly, the Court OVERRULES Petitioner's objection as to IAOC based on trial counsel's investigation and communication.

         2. Commentary by the West Virginia Supreme Court of Appeals

         Next, Petitioner objects to the PF&R's “inaccurate characterization of, and findings as to, the record and his arguments regarding the [West Virginia Supreme Court of Appeals'] assessment of counsel's performance in its direct appeal [decision].” (ECF No. 48 at 4.) Petitioner lists ten pronouncements by the West Virginia Supreme Court of Appeals (“WVSCA”) in its direct appeal decision from the underlying criminal case in support of the objection:

Trieal [sic] counsel offered no objection when Deputy Ronald Blevins testified second-hand about a supposed sighting of the Petitioner's co-defendant at the alleged crime scene.
Trial counsel offered no objection to Jason Ritchie's testimony that he made a statement to a jailhouse informant, which was then relayed to police.
Trial counsel failed to make a Confrontation Clause or hearsay argument at any point.
Trial counsel failed to develop any other record below regarding the testimony of Deputy Blevins or Mr. Ritchie.
The above failures constituted a waiver of the issues.
Trial counsel never requested the identity of an alleged confidential informant until after the trial.
The failure to raise the issue of this potentially exculpatory evidence until after the Petitioner's trial constituted a waiver of the issue.
Appellate counsel's failure, in the Petitioner's notice of appeal, to bring up the publication of a statement by Brian Salyers to the jury constituted a waiver of the issue.
Insofar as appellate counsel does eventually mention the above issue in his subsequent brief, he mentions it only in passing and without legal authority.
Trial counsel made an argument regarding potentially exculpatory evidence for the first time after the trial, but made neither a hearsay nor a Confrontation Clause argument. Appellate counsel made arguments regarding hearsay and the Confrontation Clause, but made no argument as to potentially exculpatory evidence.

(ECF No. 48 at 4 (emphasis in original).) After listing these “‘significant' deficiencies, ” Petitioner avers that the PF&R improperly “glosses over and casts these statements as misrepresentations by the Petitioner.” (Id. at 4-5.)

         The PF&R reviews these comments by the WVSCA regarding trial and appellate counsel's performances under a section entitled “Ineffective Appellate Counsel Based on Explicitly Noted Failures.” (See ECF No. 44 at 46.) The PF&R enumerates each of the ten comments made by the WVSCA, yet the PF&R appears to analyze the comments as if they only implicate the effectiveness of appellate counsel. (See Id. at 47-51.) As the comments themselves indicate, the WVSCA was speaking to both trial and appellate counsel's effectiveness.[6] Further, the PF&R states that “[a] review of the record reveals that the [WVSCA] did not ‘repeatedly' note deficiencies in appellate counsel's performance in its decision denying Petitioner's habeas appeal.” (ECF No. 44 at 50.) This Court notes that the commentary to which Petitioner refers in his claim is found only in the WVSCA's decision on direct appeal, and he is not referring to commentary in the habeas decision. Ultimately, however, the PF&R rejects Petitioner's claim that a finding by the WVSCA on habeas review that counsel was effective cannot stand in light of the court's earlier commentary, and the Court now similarly rejects that argument.

         As noted by Petitioner, the WVSCA made several comments throughout its decision on Petitioner's direct appeal regarding the performance of trial and appellate counsel.[7] For example, the court stated the following with regard to the testimony of Deputy Ronald Blevins and Jason Ritchie:[8]

[T]here was no objection made by the Defendant at the time the deputy testified about the information given to him about seeing Mr. Owens at the Whitley residence nor was there an objection to Mr. Ritchie's testimony that Mr. Cline reported his statements to the police. Moreover, there was no other record developed below by the Defendant regarding the testimony of Deputy Blevins or the testimony of Mr. Ritchie violating the Confrontation Clause of the Sixth Amendment. Despite the lack of any objection or argument below regarding a violation of the Confrontation Clause of the Sixth Amendment, the Defendant now argues on appeal that the statement made by the confidential informant to police was “testimonial” in nature and violated the Confrontation Clause.
. . .
At the outset, the Court finds that this assignment of error was not properly preserved by the Defendant below. . . . Further, the Defendant did not complain before the trial court of any violation of the Confrontation Clause. The Court consistently has held that silence may operate as a waiver of objections to error and irregularities at the trial which, if seasonably made and presented, might have been regarded as prejudicial.

(ECF No. 23-2 at 104-06, 109 (internal quotation marks omitted) (citations omitted).) As to the comments related to the name of the confidential informant (“CI”) and potentially exculpatory evidence, the WVSCA noted the following:

Finally, the Defendant also assigned as error in his brief (but not in his Petition for Appeal) the State's failure to disclose alleged exculpatory evidence under Brady. . . . As previously mentioned, the Brady issue was raised for the first time below in the post-trial motion. This argument was made in conjunction with the “failure” of the State to provide the [CI]'s name. There has been no assertion at any time by the Defendant that anything in the informant's statement would in any way tend to exculpate the Defendant. To the extent that the Defendant failed to raise the Brady issue in his Petition for Appeal as an assignment of error, and failed to develop the record regarding the issue, the argument is deemed waived and the Court is not required to consider this issue.

(Id. at 109-10.)

         Regardless of any statements made by the WVSCA about counsel's performance in the direct appeal decision where IAOC claims were not raised, the Strickland standard creates a new lens through which the court must analyze IAOC claims in a habeas proceeding. As such, commentary made by the court in the earlier direct appeal does not foreclose a finding of effective counsel during a later habeas claim.

         In its decision on the habeas petition, the WVSCA set out the Strickland standard, analyzed specific alleged shortcomings of trial counsel, and readdressed the claims regarding appellate counsel in the following passage:

In [the direct appeal opinion] we noted that appellate counsel failed to assign as error in the petition for appeal the State's failure to disclose allegedly exculpatory evidence under Brady . . . . In post-trial motions, counsel argued that the State failed to provide the name of a [CI]. However, we also noted that there had been no assertion by petitioner that anything in the informant's statement would, in any way, tend to exculpate petitioner. While we deemed the argument waived, given that the argument was not asserted in the petition for appeal, petitioner has failed to show that the assertion of the same in the petition for appeal would satisfy the second prong of the Strickland/Miller test.

(ECF No. 23-5 at 92, 94 (citations omitted) (citing Strickland, 466 U.S. at 668; Syl. pt. 5, State v. Miller, 459 S.E.2d 114 ( W.Va. 1995)).)

         A review of the state court's habeas decision shows that the WVSCA analyzed Petitioner's various IAOC claims regarding trial and appellate counsel, and it used the Strickland standard to do so. Notably, Petitioner does not argue that the correct standard was not used or that it was unreasonably applied to the facts presented to the habeas court. The alleged errors made by counsel did not amount to a plain error on direct appeal, and the WVSCA subsequently held that they did not amount to ineffective assistance under Strickland on collateral attack. The PF&R's “characterization” of the commentary does not provide any basis for relief as this Court's task is to review the state court's decision regarding alleged constitutional deficiencies. See 28 U.S.C. § 2254(d). In this respect, the Court finds that the IAOC determination made by the WVSCA did not unreasonably apply the Strickland standard and did not make an unreasonable determination of the facts in light of the evidence presented notwithstanding any comments made in its previous decision on direct appeal.

         Thus, the Court OVERRULES Petitioner's objection as to IAOC based on the WVSCA's commentary in its direct appeal decision.

         3. Motion to Recuse

         Third, Petitioner objects to the PF&R's conclusion that trial counsel was effective despite “the lack of any strategic reasoning for counsel's failure to file a motion to recuse a potentially biased judge.” (ECF No. 48 at 5-6.) Petitioner has insisted throughout the phases of his case that the trial court judge and the victim shared a close personal and political relationship and that trial counsel was ineffective for failing to move for the judge's recusal. (See id.; ECF No. 20 at 9, 29- 36; ECF No. 23-3 at 8, 29-30; ECF No. 23-5 at 24-39.) The PF&R determines that the state court did not unreasonably apply Strickland and that summary judgment for Respondent is warranted on this ground. (See ECF No. 44 at 25-33.)

         The Circuit Court of McDowell County found that “[t]rial counsel's decision not to ask Judge Stephens to recuse himself was a tactical and strategic decision” that did not result in ineffective assistance. (See ECF No. 23-5 at 7.) On appeal, the WVSCA recognized that while Mr. Anderson did not “file any motions raising potential issues of judicial recusal, ” Petitioner “failed to identify any evidence of actual prejudice or bias . . ., instead making speculative arguments.” (See Id. at 91-92.) The WVSCA, however, did not analyze the merits of this ground under Strickland. The court simply noted Petitioner's claim that counsel was ineffective for failing to file any motion for recusal but did not subsequently scrutinize counsel's decision in its discussion of Petitioner's other IAOC arguments. (See Id. at 92-93.) The WVSCA ultimately affirmed the lower court's ruling that the decision not to file a motion of recusal was strategic in nature.

         While the WVSCA did not explain its rationale on this particular claim, the standard of review set out in § 2254(d) still applies. See Weeks, 176 F.3d at 259 (citing Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998) (holding that a “perfunctory” decision constitutes an adjudication on the merits)) (“Where, as here, the state supreme court has adjudicated a claim on the merits but has given no indication of how it reached its decision, a federal habeas court must still apply the AEDPA standards of review.”). Further, “[w]hen there is a ‘reasoned' lower court opinion denying the claim, the federal habeas corpus court can ‘look through'” the higher court's summary decision and treat the lower court's opinion as the basis for the § 2254(d) analysis. 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 32.2 & n.9 (7th ed. 2016) (citations omitted) (citing, e.g., Brumfield v. Cain, 135 S.Ct. 2269, 2276 (2015)); see Grueninger v. Dir., Va. Dep't of Corr., 813 F.3d 517, 525-27 (4th Cir. 2016); see also Hope v. Cartledge, 857 F.3d 518, 523 (4th Cir. 2017); Loden v. McCarty, 778 F.3d 484, 494-95 (5th Cir. 2015) (“Where a lower state court ruled on an element that a higher state court did not, the lower state court's decision is entitled to AEDPA deference.”), cert. denied, 136 S.Ct. 402. This Court will analyze the Circuit Court of McDowell County's opinion for this claim under § 2254(d) because the WVSCA summarily affirmed the lower court's decision on the issue without explanation.

         Petitioner's habeas counsel questioned Mr. Anderson at the evidentiary hearing before the Circuit Court of McDowell County about his decision not to file a motion to recuse:

Q. Were you aware of a -- of a relationship between Doc Whitley and Judge Stephens?
A. Yes. I received second-hand knowledge [of] that. I really didn't know Doc Whitley at all. I don't think I ever had a conversation with him during that time period, but through different conversations through different people, we were made aware that Doc Whitley and Judge Stephens had, at least through the Democratic Committee, a relationship through that.
Q. You were aware of this prior to trial?
A. Yes, prior to trial. Yes, I was.
Q. And though you were aware of that, you never filed a motion to recuse Judge [Stephens]?
A. No, I did not. After speaking with Mr. Lively and also speaking with his mother, who was present, that was an issue that we had discussed, and we just -- we did not do it.
. . .
Q. You are aware that the decision whether or not to file a recusal motion is not made by the defendant but by the attorney; correct?
A. Well, like I say, I think motions are made -- the attorney decides or makes the decision, but whenever I make a decision, I usually talk with my clients and see what they feel is best, because it's their case.

(ECF No. 23-4 at 119-20, 121.) On cross-examination, Mr. Anderson conveyed some regret in not filing a recusal motion despite conferring with Petitioner and Petitioner's mother about the matter. (See Id. at 137-38 (“I should have taken control at that point in time and just filed the motion in spite of any kind of decision. I should have done that.”).) Mr. Anderson testified that he was very familiar with Judge Stephens, having practiced before him for the duration of his “whole career, since [19]95, ” (see Id. at 138-39), and that he believed Judge Stephens to be “an impartial fair judge” about whom he “couldn't say anything negative . . . .” (Id. at 139.) The Circuit Court of McDowell County held that Mr. Anderson's decision not to file a motion to recuse was “a tactical and strategic decision” that did not result in ineffective assistance. (See ECF No. 23-5 at 7.)

         Although the ultimate reasonableness of counsel's strategic choice is a question of law to be reviewed under § 2254(d)(1), the prior question of whether counsel actually made a strategic choice is a question of fact. Wood v. Allen, 558 U.S. 290, 304 (2010). Thus, this Court can only disturb that determination if Petitioner can demonstrate that it 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)(2). Here, even according the deference due the state court adjudication, the Court is doubtful that counsel employed a “strategic choice” in not moving for the recusal of the presiding judge. Mr. Anderson testified at the evidentiary hearing that he was aware of a personal relationship between the trial judge and the victim in the underlying case that could support a motion for recusal, but counsel never articulated how or why he concluded that it was in his client's best interests not to file such a motion. (See ECF No. 23-4 at 119-21, 137-39.) However, it does not automatically follow from the fact that counsel's decision was not “strategic” that counsel's decision was therefore not professionally reasonable. See Bullock v. Carver, 297 F.3d 1036, 1050- 51 (10th Cir. 2002) (citing Strickland, 466 U.S. at 688). Even where counsel admittedly errs or fails to make a conscious decision, the question of performance must be assessed at the time of the alleged error in light of all the circumstances. See Kimmelman, 477 U.S. at 381. Further, determining whether or not counsel's performance actually violated Strickland is not the task for this Court. See Harrington, 562 U.S. at 101; see also Moore v. Hardee, 723 F.3d 488, 496 (4th Cir. 2013) (“That a petitioner's Strickland claim may have had merit does not alone justify awarding habeas . . . .”). If the Court determines that counsel's overall performance was at least arguably reasonable from an objective standpoint, it cannot find the state court's ultimate rejection of the ineffective assistance claim to be an unreasonable application of clearly established federal law. See § 2254(d)(1).

         Notwithstanding Mr. Anderson's admission that he should have filed a motion of recusal given the benefit of hindsight, this does not, without more, overcome the presumption that he acted “within the wide range of reasonable professional assistance” when representing Petitioner. See Strickland, 466 U.S. at 689. Mr. Anderson had practiced before the trial judge in Petitioner's case for over a decade and considered him an impartial judge. (See ECF No. 23-4 at 138-39.) Mr. Anderson only knew of a general personal relationship between the judge and victim, and he discussed the issue with Petitioner and Petitioner's mother before deciding not to file a motion. (See Id. at 119-20.) Insofar as Petitioner attempts to use Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), in support of his claim that there was clear judicial bias on which counsel should have acted, the WVSCA correctly found that the facts in that case “are easily distinguishable from those in the instant case.” (ECF No. 23-5 at 91.) See also Caperton, 556 U.S. at 884-85 (holding that “there is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent”).

         Additionally, as noted by the WVSCA, Petitioner “failed to identify any evidence of actual prejudice or bias” on the part of the trial judge, (ECF No. 23-5 at 91), that would otherwise make the failure to file a recusal motion a sign of professional incompetence. Petitioner presented no evidence at the evidentiary hearing in state court that necessitates a finding of ineffective assistance on this ground. Not only does Petitioner fail to present evidence that Mr. Anderson's decision was objectively unreasonable, but also he makes no claim in his objection to the PF&R that filing a motion to recuse before trial would have resulted in a different jury verdict or other outcome. (See ECF No. 48 at 5-6.) In light of counsel's overall performance highlighted in other portions of this Memorandum Opinion, [9] there is a “reasonable argument that counsel satisfied Strickland's deferential standard.” Cf. Harrington, 562 U.S. at 89. As such, the Circuit Court of McDowell County's opinion does not illustrate an unreasonable application of clearly established federal law or an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d); see also Renico, 559 U.S. at 773 (citing Williams, 529 U.S. at 410) (emphasizing that the Court must focus on whether the state court's application of clearly established federal law was “unreasonable, ” as opposed to whether it was “correct”).

         Therefore, the Court OVERRULES Petitioner's objection as to IAOC based on trial counsel's failure to file a motion to recuse.

         4. Prosecutorial Misconduct

         Petitioner further objects to the PF&R's finding that trial counsel was effective despite the alleged failure “to raise any meaningful objection to the prosecutor's improper hijacking of the sitting circuit clerk as his personal representative in seeking to secure the Petitioner's conviction.” (ECF No. 48 at 6.) Specifically, this relates to two telephone calls that the circuit clerk made in an attempt to instruct a potential witness to call the prosecutor's office. (See ECF No. 23-5 at 89- 90, 93 (noting that the circuit clerk, Michael Brooks, actually conversed with the witness' girlfriend, Courtney Prater).) Petitioner argues that counsel should have “press[ed] the issue before, during, or after trial.” (ECF No. 48 at 6 (“Experienced trial counsel should have hit the roof over such impropriety.”).) The PF&R finds that the state court did not unreasonably apply Strickland on this claim ...


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