United States District Court, S.D. West Virginia, Charleston
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
matter is assigned to the Honorable Thomas E. Johnston, Chief
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the
court are the respondent's Motion to Dismiss Petition for
Writ of Habeas Corpus as Unexhausted (ECF No. 18) and the
petitioner's Motion for Stay and Abeyance (ECF No. 29).
HISTORY OF PETITIONER'S CASE
The petitioner's criminal convictions.
August 10, 2000, the petitioner was convicted by a Nicholas
County jury of one count of sexual assault in the first
degree; 12 counts of sexual abuse in the first degree; five
counts of sexual abuse by a parent, guardian, or custodian;
and nine counts of sexual assault in the second degree.
State v. Swager, No. 00-F-17 (Nicholas Cty. Cir.
Ct.). On September 29, 2000, the petitioner was sentenced to
an indeterminate term of 56 to 120 years in prison. The
petitioner's motion for reconsideration was subsequently
denied after a hearing. (ECF No. 18, Exs. 33-35).
The petitioner's direct appeal.
September 20, 2000, the petitioner filed a Notice of Intent
to Appeal. On April 19, 2001, the petitioner, by counsel,
Randall W. Galford, filed a Petition for Appeal asserting the
following assignments of error:
1. The Court erred in not permitting the defendant's law
enforcement expert, Sam Sampson, to express an opinion about
the ultimate issue.
2. The trial Court erred in giving the jury an instruction
during deliberations to convince them to reach a verdict and
in stating the trial court intend [sic; intent] to require
them to deliberate for three (3) days.
3. The trial court erred in not permitting the defense
witness, Richard Dillon, to testify.
4. The trial court erred in refusing to permit certain
incidents and evidence by defense witness to show the
defendant had never engaged in “grooming”
behavior testified about by the prosecution's expert.
5. The trial court erred in refusing to admit photographs of
the alleged crime scene, and by refusing to admit evidence
that the alleged victim's motive for alleging sexual
assault was anger at the defendant over prohibiting her from
writing symbols and engaging in acts considered witchcraft.
6. The trial court erred in denying the defense the
opportunity to cross examine the alleged victim about using
marijuana at the time of the last alleged sexual assault.
7. The trial court erred in denying the defendant's
motion to suppress the results of DNA testing.
8. The trial court erred in prohibiting the defense attorney
from mentioning the name “Fred Zain” in using the
past reputation of the police laboratory for impeachment
9. The trial court erred in refusing to give defendant's
jury instruction no. 4.
10. The trial court erred in denying the defendant's
motion to suppress the items not listed on the search warrant
and the serological and DNA evidence therefrom.
11. The trial court erred in sustaining the State's
objection to Patricia Johnson's testimony about whether
she reported her daughter was sexually abused, and John
Johnson's testimony that Patricia Johnson had threatened
him with falsely claiming he sexually abused his daughter.
12. The court erred in refusing to strike for cause a juror
who had worked for the Department of Health and Human
Services and knew the State's witness and CPS worker, Ms.
Pittsenbarger, from working there with her.
13. The conviction in the case should be set aside based upon
the cumulative error doctrine.
(ECF No. 18, Ex. 39 at 16-17). Upon thorough review of the
Petition for Appeal, only Grounds 4, 5, 6, 7, and 8 were
raised in the context of a federal constitutional right. (ECF
No. 18, Ex. 39, passim). The remaining grounds were
addressed only as claims of trial court error under state
law. (Id.) On November 7, 2001, the SCAWV refused
the petitioner's Petition for Appeal (No. 010697, ECF No.
18, Ex. 40).
The petitioner's circuit court habeas corpus
January 1, 2002, the petitioner filed a pro se
Petition for a Writ of Habeas Corpus in the Circuit Court of
Nicholas County. (No. 02-C-13). On January 14, 2002, the
petitioner filed a Petition for a Writ of Mandamus in the
SCAWV, claiming “actual innocence” and “DNA
fraud, ” and requesting appointment of counsel to file
a petition for a writ of habeas corpus to address those
issues. (ECF No. 18, Ex. 41).
23, 2002, the SCAWV issued a rule and directed the Circuit
Court of Nicholas County to appoint counsel to assist the
petitioner in having his DNA tested. (Id., Ex. 42).
However, the matter languished without significant action in
the circuit court for several years, and several different
attorneys were appointed to represent the petitioner during
that time. (Id., Exs. 44-47). On February 2, 2004,
however, an agreed order was entered to provide the
petitioner with all of the DNA testing records.
(Id., Ex. 48).
April 10, 2006, the petitioner, by counsel, Gregory L. Ayers
and Crystal L. Waldren, filed an Amended Petition asserting
the following grounds for relief:
1. Swager was denied his right to be fully and plainly
informed of the nature, character, and cause of the
accusation in each count of his indictment, guaranteed by the
Sixth Amendment to the United States (U.S.) Constitution and
Article III, § 14 of the W.Va. Constitution, as each
count failed to contain a “plain, concise, and definite
written statement of the essential facts constituting the
2. Swager was denied his right to confront and cross-examine
his accusers guaranteed by the Sixth Amendment to the U.S.
Constitution and Article III, § 14 of the W.Va.
Constitution, when the trial court refused to permit him to
cross-examine E.S., the alleged victim, regarding (1) her
smoking marijuana just prior to the alleged offense on June
30, 1999, which Swager confronted her about; (2) her conflict
with Swager over her smoking marijuana; and (3) her conflict
with Swager over her engaging in “witchcraft”
practices, all of which gave E.S. a motive to lie about the
sexual assaults to get Swager out of their home.
3. Swager was denied his due process rights to present a
defense and his rights to present witnesses, guaranteed by
the Fourteenth and Sixth Amendments of the U.S. Constitution
and Article III, §§ 10 and 14 of the W.Va.
Constitution, respectively, when the trial court refused to
allow him to present testimony regarding E.S.'s motive to
lie and falsely accuse him of these crimes and other evidence
in his defense.
claim incorporated claims that the trial court prohibited
defense counsel from cross-examining E.S. concerning smoking
marijuana and engaging in alleged witchcraft practices, as
well as limiting the petitioner's testimony about the
same. This claim also incorporated a claim that the trial
court refused to admit a defense exhibit consisting of a
photograph of E.S.'s bedroom wall containing alleged
“devil worship” graphics. This claim further
incorporated a claim that the trial court refused to permit
the testimony of Richard Dillon, E.S.'s former boyfriend,
who allegedly would have testified about conflicts between
the petitioner and E.S. about her ability to date. Finally,
this claim incorporated a claim that the trial court refused
to permit the testimony of two defense witnesses, Pamela Rapp
and Alan Hughes, concerning their observations of conduct
between the petitioner and E.S. to rebut the testimony of
Cheryl Pittsenbarger, a CPS worker, who testified for the
State about a child molester's “grooming” of
his victim to secure their compliance. According to the
Amended Petition, the trial court only allowed these
witnesses to testify concerning whether the petitioner had a
reputation for lustfulness. (ECF No. 18, Ex. 49 at 7-9).
4. The trial court denied Swager his due process right to a
fair trial, guaranteed by the Sixth and Fourteenth Amendments
to the U.S. Constitution, when the court at 8:40 p.m., sua
sponte summoned the jurors to the courtroom after they had
deliberated for about four hours, and unnecessarily read them
a “deadlock” or “Allen” instruction
which, under the circumstances of this case, coerced the jury
into rendering a guilty verdict on twenty-seven counts less
than thirty minutes later.
5. Swager was denied his right to due process of law,
guaranteed by the Fourteenth Amendment to the U.S.
Constitution and Article III, § 10 of the W.Va.
Constitution, when the trial court in sentencing Swager
punished him for exercising his right to a jury trial. The
court did so by telling Swager to expect the maximum sentence
if he did not plead guilty, but was found guilty, and then
sentenced him to 56-120 years after being convicted by a
jury. This sentence far exceeds the 15 to 45 year sentence
the trial court said it would impose if he plead guilty.
(ECF No. 18, Ex. 49, passim). The Amended Petition
also reserved raising an additional claim of ineffective
assistance of counsel that the petitioner stated he was
“still investigating . . . which will depend on whether
he can locate the relevant witnesses and obtain affidavits
from them in support of this claim.” The claim stated:
Swager was denied his constitutional rights to the effective
assistance of counsel when his trial counsel failed to
present available witnesses to testify that E.S. had ...