United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
the Court are Respondent's Motion for Summary Judgment,
(ECF No. 36), and Petitioner's Motion for Summary
Judgment,  (ECF No. 40), on Petitioner's Amended
Petition for Writ of Habeas Corpus Under 28 U.S.C. §
2254 (“the § 2254 Petition”). 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.
November 21, 2006, Petitioner was convicted upon a jury
verdict of first degree murder with recommendation for
mercy 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.)
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. 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
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.
Review of Magistrate Judge's Findings and
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).
Habeas Corpus Standard of Review
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).
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
(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 the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
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).
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).
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
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
Ineffective Assistance of Counsel
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
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).
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.”).
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.
Communication and Investigation
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.)
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
(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))).
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.
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).
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
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. §
the Court OVERRULES Petitioner's
objection as to IAOC based on trial counsel's
investigation and communication.
Commentary by the West Virginia Supreme Court of Appeals
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
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
(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.)
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. 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
noted by Petitioner, the WVSCA made several comments
throughout its decision on Petitioner's direct appeal
regarding the performance of trial and appellate
counsel. For example, the court stated the
following with regard to the testimony of Deputy Ronald
Blevins and Jason Ritchie:
[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
. . .
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
(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
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.)
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.
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
(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)).)
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.
the Court OVERRULES Petitioner's
objection as to IAOC based on the WVSCA's commentary in
its direct appeal decision.
Motion to Recuse
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.)
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.
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.
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
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
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
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.)
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).
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
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,
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”).
the Court OVERRULES Petitioner's
objection as to IAOC based on trial counsel's failure to
file a motion to recuse.
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