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Swager v. Terry

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

January 5, 2018

DANNY SWAGER, Petitioner,
v.
RALPH TERRY, Acting Warden, Mount Olive Correctional Complex, [1] Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         This 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).

         PROCEDURAL HISTORY OF PETITIONER'S CASE

         A. The petitioner's criminal convictions.

         On 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).

         B. The petitioner's direct appeal.

         On 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 purposes.
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).

         C. The petitioner's circuit court habeas corpus proceedings.

         On 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).[2] 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).

         On May 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).

         On 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 offense charged.
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.

         This 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 ...

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