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Grantham v. Ballard

United States District Court, N.D. West Virginia

January 16, 2018

THOMAS GRANTHAM, JR., Petitioner,
v.
DAVID BALLARD, Warden, Respondent.

          Keeley Judge

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE

         This case was initiated by the pro se Petitioner on May 25, 2017, by the filing of a petition for habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Along with his petition, Grantham filed a motion to proceed in forma pauperis (“IFP”), a copy of his Prisoner Trust Fund Account Report, and the five dollar filing fee. ECF Nos. 2, 3, & 4. By Order entered May 30, 2017, the IFP motion was granted in error. ECF No. 6. On June 7, 2017, the Order granting the IFP motion was vacated. ECF No. 7.

         By separate Order entered June 7, 2017, pursuant to Rule 4 of the Federal Rules Governing Section 2254 Proceedings in the United States District Court, the undersigned made a preliminary review of the petition and found that summary dismissal was not warranted at that time. Accordingly, the Respondent was directed to file an answer to the petition. ECF No. 10. On June 13, 2017, the Respondent moved for an extension of time. ECF No. 15. On June 20, 2017, Petitioner moved for appointed counsel. ECF No. 16. By Order entered June 21, 2017, Petitioner's motion for appointed counsel was denied. ECF No. 17. By Order entered June 26, 2017, Respondent's motion for an extension was granted. ECF No. 18. On August 4, 2017, the Respondent filed a response, a Motion for Judgment on the Pleadings, and a memorandum in support. ECF Nos. 21, 22, & 23. Because Petitioner was proceeding pro se, on August 9, 2017, a Roseboro Notice was entered. ECF No. 24. On August 17, 2017, Petitioner filed a response in opposition to Respondent's dispositive motion, which contained within it a motion for an order directing the state court to provide a hearing and fully adjudicate Petitioner's ineffective assistance of counsel claims. ECF No. 26.

         Accordingly, this case is before the undersigned for a report and recommendation pursuant to LR PL P 2.

         I. Factual and Procedural Background A. Petitioner's Conviction and Sentence[1]

The state asserted that on the night of April 22 and into the early morning of April 23, 2011, petitioner and Co-Defendant James Cross were at a bar in Martinsburg . They were seen at the bar by fellow patrons Sharenna Gonzalez, Sheron . . . [and] Shameeka Yates, and by bar employee Daniel Derito. Derito also identified petitioner and Cross on video surveillance taken at the bar that night.
Derito testified that after the bar closed he broke up a verbal dispute between petitioner and Cross and two other males. Gonzalez and Sheron Yates testified that while outside the bar, they witnessed a verbal dispute between Cross and another man, Jacques Taylor. There was testimony that Cross flicked a cigarette into the face of Taylor's friend, Andre Jackson. Gonzalez, who was not drinking that night, testified that she and Cross got into Cross' car where Gonzalez tried to calm Cross down. Gonzalez testified that she got out of the car when petitioner got in.
The State's witnesses testified that petitioner and Cross then left together, with petitioner driving. Taylor and Jackson followed in a car driven by Taylor. Gonzalez and the Yateses followed in a third vehicle that was driven by Gonzalez. There was testimony that petitioner pulled into a gas station, followed by the other vehicles. Angry words were exchanged between the occupants of the petitioner/Cross vehicle and the Taylor/Jackson vehicle. The Taylor/Jackson vehicle pulled out of the gas station followed by the petitioner/Cross vehicle and the Gonzalez/Yates vehicle. The Taylor/Jackson vehicle turned into an apartment complex and headed up a hill toward the back of the complex. The petitioner/Cross vehicle and the Gonzalez/Yates vehicle stopped in a parking area to turn around. The petitioner/Cross vehicle pulled out of the parking area.
Gonzalez testified that she tried to follow but her vehicle was almost struck by the Taylor/Jackson vehicle being driven in reverse down the road out of the complex.
The three cars came to a stop. Gonzalez and the Yateses testified that petitioner and Cross exited their vehicle and ran to the Taylor/Jackson vehicle, with petitioner going to the driver's side (Taylor) and Cross going to the passenger's side (Jackson). Taylor testified at trial that he rolled down his window to speak but was immediately stabbed in the neck, chest, arms, and shoulder. At trial, Gonzalez and the Yateses identified petitioner as the perpetrator who stabbed Taylor. Meanwhile, Cross was repeatedly stabbing Jackson. The women exited their vehicle and observed the altercation. The women testified that petitioner and Cross then ran back to their car, with petitioner knocking Shameeka Yates down as he ran past her. They testified that as petitioner was driving away, he attempted to run down Jackson.
The 911 center was called at approximately 3:18 a.m. on April 23. Taylor survived, but Jackson collapsed and died from his injuries.
The next day, April 24 . . . was Easter Sunday[]; petitioner called his cousin to explain that he was en route to her home in Cincinnati and needed her address. The cousin testified that she had previously invited petitioner to attend her daughter's birthday party on April 27, but he had not told her he was coming. Petitioner, accompanied by Cross, arrived at the cousin's home and stayed in the bedroom of the cousin's sons. Police later searched this bedroom and found tote bags with four knives and two false identification cards, including a West Virginia identification card that had petitioner's photograph but a false name. Police also searched a home in Martinsburg where petitioner frequently resided, finding two box cutters hidden in a cigar box with petitioner's real identification card, and a butcher knife in a bedroom.
When questioned by police after the crime, Sheron Yates did not refer to petitioner by name but only as the "black male." However, Sheron later identified petitioner in a police photo array. Shameeka Yates was unable to identify petitioner in the photo array, but identified him at trial. Taylor gave conflicting information to police and initially said that he was not sure if his assailant was male or female. At trial, Taylor was unable to identify his assailant other than to say that it was an African-American male whom he had seen at the bar that night. At trial, Gonzalez identified petitioner as an assailant.
Petitioner did not testify at trial but asserted an alibi defense. His lawyer argued that some other man, not petitioner, was in the car with Cross at the time of the physical altercation. The defense presented testimony from petitioner's neighbor William Golden that around 3:00 a.m. on April 23, Golden saw petitioner standing on their street. Golden testified that he heard a car pull up and when he went back outside, petitioner was gone and a Mercedes was leaving. The defense also presented testimony from petitioner's friend Darnell Carey that he saw petitioner get dropped off by a Mercedes at 3:10 a.m. and then get into a black Cadillac.

ECF No. 21-6 at 1 - 4.

         Petitioner and Cross were jointly indicted and tried[2] in the Berkeley County Circuit Court in Case No. 11-F-208. On June 18, 2012, after a 5-day jury trial, Petitioner was convicted of second degree murder, attempted murder, and malicious assault, but acquitted of a conspiracy charge. ECF No. 21-1; see also ECF No. 21-6 at 4.

         At an August 27, 2012 sentencing hearing, the circuit court denied Petitioner's post-trial motions for directed verdict and for judgment of acquittal notwithstanding the jury's verdict. ECF No. 1 at 2. The court then sentenced Grantham to a determinate term of 40 years imprisonment on the second degree murder charge; not less than one nor more than three years on the attempted murder charge; and not less than two nor more than ten years on the malicious wounding charge, with all sentences to run consecutively for a total term of 43 - 53 years in prison. Id. at 3 - 4.

         B. Direct Appeal

         On appeal, [3] in WVSCA Case No. 12-1293, Petitioner raised these nine assignments of error, alleging that the trial court committed plain and prejudicial error and abused its discretion when it:

         1) denied Petitioner's motion to sever his trial from that of co-defendant Cross [ECF No. at 7] [in violation of federal law; see ECF No. 21-3 at 34];

         2) allowed in-court identification of persons unable to identify Petitioner in an out-of-court photo array on the same day of the alleged crime [id. at 7, 31 - 32];

         3) allowed the state to present evidence of flight against the Petitioner [id. at 7, 38 - 40];

         4) allowed the state to present autopsy photographs of the victim Andre Jackson [id. at 7, 38 - 40];

         5) allowed the state to present evidence of various knives found in Petitioner's possession which were in no way linked to the alleged crime [id. at 7, 38 - 39, 41];

         6) failed to direct a verdict in Petitioner's favor at the close of the state's case-in-chief and at the close of evidence, or, in the alternative, the jury's verdict was contrary to the the evidence presented [id. at 7, 41 - 42];

         7) allowed the state's jury instruction on "concerted action" as there was no showing of any shared intent between Petitioner and co-defendant Cross [id. at 7, 42 - 43];

         8) failed to allow Petitioner to comment on co-defendant Cross' silence in closing argument [id. at 7, 43, 34 - 38]; and when it

         9) sentenced Petitioner to 40 years upon his second degree murder conviction and ran his other sentences for attempted murder and malicious assault consecutively to each other. Id. at 7, 43 - 45.

         By memorandum decision entered on November 22, 2013, the West Virginia Supreme Court of Appeals (“WVSCA”) affirmed Petitioner the circuit court's judgment on Petitioner's convictions and sentences. ECF No. 21-6. Mandate issued on the WVSCA's decision on December 23, 2013. ECF No. 21-7. Grantham did not seek further review. ECF No. 1 at 3.

         C. Petitioner's State Habeas Petition

         On June 16, 2014, Grantham filed a pro se petition for writ of habeas corpus in the Berkeley County Circuit Court in Case No. 14-C-405, raising eight grounds for relief. ECF No. 21-8. Thereafter, the circuit court appointed him counsel.[4]

         By Order entered June 19, 2014, counsel was directed to file an amended petition and a Losh[5] list. ECF No. 21-9. On November 5, 2014, through counsel, Grantham filed an amended habeas petition [ECF No. 21-10] raising five claims:

         1) he was denied his constitutional right to effective assistance of counsel, in violation of his Sixth Amendment of the United States Constitution and under Article III, § 14 of the West Virginia Constitution [ECF No. 21-10 at 7], when

a) trial counsel made the ill-advised decision to proceed with an alibi defense in light of overwhelming evidence to the contrary [id. at 9];
b) trial counsel failed to adequately and thoroughly investigate Petitioner's case by utilizing the preliminary hearing transcripts and the state's witnesses original statements to the police for impeachment purposes [id.];
c) trial counsel failed to properly object to the state's introduction of inadmissible hearsay statements and testimony of Sheron Yates, Shameeka Yates, and Jacques [id.];
d) trial counsel failed to properly cross-examine the witnesses to establish that the stabbing of Andre Jackson and Jacques Taylor took place outside of the vehicle while Petitioner was retreating [id.];
e) trial counsel failed to move the court for a defense expert witness on blood spatter and knife wounds to disprove the state's investigating officer and lay witness testimony that the stabbing of Jackson and Taylor took place in the front seat of Taylor's vehicle [id. at 9 -10]; and
f) on direct appeal, appellate counsel failed to raise the issue of Juror # 7450, Victor Holmes, and his relationship to Petitioner. Id. at 10.

         2) Petitioner's constitutional rights under the Sixth and Fourteenth Amendments of the United States Constitution and under Article III, § 14 of the West Virginia Constitution to an impartial jury were violated by the participation of Juror #7450, Victor Holmes, because he was a blood relative of Petitioner. Id. at 14.

         3) The trial court committed constitutional error by violating Petitioner's due process rights under the Fourteenth Amendment to the United States Constitution and Article III, § 10 of the West Virginia Constitution, when the trial court denied his motion to sever his trial from that of his co-defendant Cross. Id. at 17.

         4) The circuit court committed a constitutional error by denying Petitioner's due process rights to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article III, §10 of the West Virginia Constitution, when it gave an erroneous and improper “concerted action” instruction. Id. at 20.

         5) Petitioner's due process rights to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article III, §10 of the West Virginia Constitution were violated by the cumulative error committed at trial. Id. at 22. Those errors were:

a) giving the state's proposed instructions on “concerted action” and denying Petitioner's [id. at 23];
b) permitting the state to introduce evidence of flight against Petitioner, and evidence of various knives in his possession, not linked to the crime [id.];
c) permitting the state to introduce gruesome photographs of decedent Andre Jackson [id.];
d) failing to grant Petitioner's motion to sever his trial from his co-defendant's, for the reasons stated in Ground 3 [id.];
e) failing to suppress in-court identification of Shameeka Yates and Jacques Taylor, who could not identify Petitioner in a previous out of court photo array the day after the alleged crime [id. at 24];
f) abusing its discretion by prohibiting Petitioner from calling the co-defendant to testify and then commenting on his co-defendant's silence if he invoked his Fifth Amendment right against self-incrimination [id.];
g) committing error when it permitted the State to comment during closing that Petitioner acted in concert with his co-defendant to commit murder [id.];
h) abusing its discretion by denying Petitioner's motions for a directed verdict, because the evidence was insufficient to convict [id.];
i) failing to grant Petitioner's post-trial motion for a new trial based upon insufficient evidence [id.];
j) committing error when it prohibited Petitioner from obtaining the investigating officers' original notes taken during the investigation wherein the prosecutor could have withheld exculpatory evidence [id.];
k) permitting the state to improperly secure Petitioner's conviction by tainted jury instructions that diluted the reasonable doubt standard [id. at 25];
l) allowing the jury's verdict to stand in light of the improper and tainted jury instruction [id.]; and
m) abused its discretion when it sentenced the Petitioner to forty years upon his conviction for second degree murder, and then ordered his convictions for attempted murder and malicious assault ...

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