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Prophet v. Ballard

United States District Court, N.D. West Virginia

February 6, 2018

ANTONIO PROPHET, Petitioner,
v.
DAVID BALLARD, Warden, Respondent.

          Keeley, Judge

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This case was initiated by the pro se Petitioner on August 24, 2016, by the filing of a petition for habeas corpus pursuant to 28 U.S.C. § 2254. The petition was not on a court-approved form and comprised 806 pages, including memoranda and attachments. Along with the petition, Petitioner paid the filing fee and filed a Motion for Expedited Review. ECF Nos. 2 & 3. The following day, pursuant to Rule 4 of the Federal Rules Governing Section 2254 Proceedings in the United States District Court, Magistrate Judge James E. Seibert 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. 5. On August 29, 2016, the Respondent moved for an extension of time. ECF No. 7. By entered the same day, Petitioner was directed to show cause; his over-large § 2254 petition was struck for failure to comply with the Local Rules of Prisoner Litigation Procedure (“LR PL P”); the attachments to the petition were struck; Petitioner's motion for expedited review was denied; and the prior order directing Respondent to answer was vacated. ECF No. 10. By separate Order entered the same day, Respondent's motion for an extension was denied as moot. ECF No. 9.

         On September 2, 2016, Petitioner refiled his § 2254 petition, with a 7-page typed “addendum” and three attached exhibits;[1] along with a motion to proceed as a pauper; a copy of his Prisoner Trust Account Report; a response to the order to show cause; a Motion for Leave to Type 2254 on the Uploaded Court-Approved Form; and a Motion for Leave to File Excess Pages. ECF Nos. 13, 14, 15, 16, 17, & 18.

         On October 31, 2016, along with a Motion for the Court to Forthwith Direct the Respondent to File an Answer to Petitioner's Initial or Modified 2254 Petition [ECF No. 20], Petitioner filed a Renewed Motion for Expedited Review of his § 2254 petition. ECF No. 21. By Order entered November 2, 2016, Petitioner's motion to type his § 2254 petition on an uploaded court approved form and his motion for leave to file excess pages were granted, and Petitioner was directed to file a memorandum of law, if any, not to exceed fifty pages. ECF No. 22. By separate Order entered the same day, Petitioner's renewed motion for expedited review was denied. ECF No. 23.

         On November 9, 2016, Petitioner filed a 56-page Memorandum of Law in support of his § 2254 petition. ECF No. 25.

         On December 2, 2016, Petitioner filed another Renewed Motion for the Court to Forthwith Direct the Respondent to File an Answer. ECF No. 26. On December 5, 2016, the Respondent filed a response in opposition, along with a motion to strike Petitioner's memorandum of law. ECF No. 27. Petitioner filed a reply on December 8, 2017. ECF No. 28.

         On January 18, 2017, Petitioner filed a Renewed Motion for the Court to Forthwith Direct the Respondent to File an Answer. ECF No. 29. On March 21, 2017, Petitioner filed a Motion for the District Judge to Direct the Magistrate Judge to Forthwith Order the Respondent to File an Answer. ECF No. 35. By Order entered March 29, 2017, Petitioner's motion and renewed motion to direct the Respondent to file an answer were denied; Respondent's motion to strike Petitioner's memorandum of law was granted, and Petitioner was again directed to refile his memorandum in support in compliance with the LR PL P. See ECF No. 36. By Order entered March 30, 2017, Petitioner's Motion for the District Judge to Direct the Magistrate Judge to Forthwith Order the Respondent to File an Answer was denied as moot. ECF No. 37. On March 31, 2017, Petitioner filed a response to the March 29, 2017 Order, withdrawing his Memorandum of law; waiving the right to file another; and requesting the Court to forthwith direct the Respondent to file an answer only to his § 2254 petition. ECF No. 38. On April 27, 2017, Petitioner filed a Motion for the Court to Forthwith Order the Respondent to File an Answer and to Expedite Review. ECF No. 41.

         By Order entered May 2, 2017, the Respondent was directed to show cause why the petition should not be granted; Petitioner's motion for the court to forthwith direct the Respondent to file an answer was denied as moot, and Petitioner's motion to expedite review was denied as premature. ECF No. 42. That same day, the Respondent moved for an extension of time to file an answer. ECF No. 43. By Order entered May 3, 2017, Respondent's motion for an extension was granted. ECF No. 44. On July 24, 2017, Respondent filed a second motion for an extension of time. ECF No. 48. On July 27, 2017, Petitioner filed an objection to Respondent's second motion for an extension. ECF No. 49. On July 27, 2017, Respondent filed a reply to Petitioner's objection. ECF No. 50. On August 16, 2017, Respondent filed a motion for leave to file out of time; a Response; a Motion to Dismiss for Failure to Exhaust; a Memorandum in Support; and a Motion for leave to file excess pages. ECF Nos. 51, 52, 53, 55, & 54. By Order entered August 21, 2017, Respondent's motion for leave to file out of time was granted, and Respondent's prior motion for an extension of time was denied as moot. ECF No. 56. By separate Order entered the same day, Respondent's motion to exceed the page limits was granted. ECF No. 57. Because Petitioner was proceeding pro se, on August 22, 2017, an Roseboro Notice was entered. ECF No. 58. On August 28, 2017, Petitioner filed a Response in Opposition to Respondent's Motion to Dismiss and a Reply; the two documents together exceeded the LR PL P limitation of pages by 5 pages and were filed without a motion to exceed the page limit. ECF Nos. 61 & 62. Along with those two responses, Petitioner filed another Motion for the Court to Expedite Review of the Matter of Exhaustion and Order the Respondent to Forthwith File an Answer Addressing the Allegations in Petitioner's § 2254 Petition. ECF No. 63. By Order entered August 30, 2017, Petitioner's third renewed motion for expedited review was denied as premature. ECF No. 64.

         By Order entered September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to Magistrate Judge Michael J. Aloi.

         On September 27, 2017, Petitioner filed a Clarified Motion for the Court to Expedite Review of the Matter of Exhaustion and Order the Respondent to Forthwith File an Answer Addressing the Allegations in Petitioner's § 2254 Petition. ECF No. 66. On November 2, 2017, Petitioner filed a Motion for the District Judge to Direct the Magistrate Judge to Expedite Review of the Matter of Exhaustion and Order the Respondent to Forthwith File an Answer Addressing the Allegations in Petitioner's § 2254 Petition. ECF No. 67.

         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

         On June 5, 2010, Petitioner spent the night with his girlfriend, Angela Devonshire, and her two young children in her apartment above her parents' garage in Berkeley County, West Virginia. See West Virginia Supreme Court of Appeals' (“WVSCA”) June 5, 2014 opinion on direct appeal, ECF No. 52-15 at 7. The garage apartment was located at the end of Devonshire's parents' driveway, approximately 75 yards from their home. Id. At some point before 4:36 a.m., Petitioner slit Ms. Devonshire's throat and then burned the apartment with Ms. Devonshire and her three-year-old son Andre still inside.[2] Id. at 7 - 8. Petitioner carried Ms. Devonshire's other son, Daronte, an infant approximately six weeks old, out of the apartment and over to Devonshire's parents' nearby patio, where he left him, [3] unattended but alive. Id. at 8 & 12. The infant was uninjured;[4] however, blood spatter on his clothing was later confirmed to be Petitioner's. Id. at 8. Petitioner, using an assumed name, attempted to flee to Georgia [ECF No. 52-20 at 2], but was apprehended in North Carolina on June 17, 2010. ECF No. 52-15 at 8; see also ECF No. 52-5 at 50 - 51 & 53. At the time of his arrest, Petitioner's hands exhibited defensive injuries. ECF No. 52-15 at 8.

         Accordingly, on February 17, 2011, a grand jury sitting within the Circuit Court of Berkeley County, West Virginia (“circuit court”) indicted Petitioner in Criminal Case No. 11-F-67 on two counts of first-degree murder, for the deaths of Ms. Devonshire and her son, and on one count of first-degree arson. ECF No. 52-1.

         At Petitioner's July, 2012 trial, [5] the State of West Virginia (“state”) introduced witnesses who testified that Petitioner had a cut on his neck and blood on his clothing on the morning following the murder/arson; that Petitioner requested clothes, a cell phone, and money from an ex-girlfriend on the morning of the murder/arson; that he sought transportation out of state; that he requested help from a friend after texting him that he “was in a situation;” and that blood on the infant's clothing matched Petitioner's. ECF No. 52-15 at 8-9.

         Petitioner testified in his own defense, alleging that the deaths were the result of a drug-related hit targeting Ms. Devonshire, purportedly because of money she allegedly owed one Joseph Medina. See id. at 10 - 12. Specifically, Petitioner testified that two men broke into Ms. Devonshire's apartment that night and slit her and her three-year-old son's throats while Petitioner attempted to fight them off. Id.; see also ECF No. 52-30 at 300 - 01. However, Petitioner's testimony opened the door to a rigorous cross-examination, wherein the State identified similarities in Petitioner's story to fictional elements contained within a novel Petitioner wrote prior to the killings. See A. Prophet, Enter the Fire: Seven Days in the Life, PublishAmerica[6] (2008). ECF No. 52-15 at 12-13.

         On July 20, 2012, after a 5-day jury trial, Petitioner was convicted on all charges; the jury recommended that he be sentenced to life without the possibility of parole. ECF No. 52-15 at 14; see also ECF No. 52-10.

         At a September 10, 2012 hearing, the circuit court denied Petitioner's post-trial motions for acquittal and a new trial and sentenced him to a determinate term of life without the possibility of parole on each murder conviction, and to a determinate term of twenty (20) years, the maximum sentence[7] on the arson conviction, with all sentences to run consecutively. ECF No. 52-12.

         B. Direct Appeal

         On appeal, [8] in WVSCA Case No. 12-1389, Petitioner raised these seven grounds of error:[9]

         1) The circuit court committed reversible error when it failed to grant a judgment of acquittal at the close of the State's case-in-chief and again at the conclusion of all the evidence. See ECF No. 52-14 at 8.

         2) The circuit court committed reversible error when it failed to grant Petitioner's motion for a new trial as the use of Petitioner's previously authored fictional novel was improper and unduly prejudicial. Id. at 39.

         3) The circuit court committed reversible error when it failed to grant Petitioner's motion for a new trial as the State improperly used Petitioner's post arrest/pre-trial silence to impeach Petitioner. Id. at 45.

         4) The circuit court committed reversible error when it failed to grant Petitioner's motion for a new trial after the trial court refused to give a jury instruction as proffered by defendant prior to the case being submitted to the jury. Id. at 48.

         5) The circuit court committed reversible error when it failed to grant Petitioner's motion for new trial and motion for judgment of acquittal as the State knowingly allowed Joseph Medina to present false and perjured testimony [id. at 50 - 58][regarding]:

a) Petitioner's alleged confession [id. at 51];
b) Petitioner's change of story [id. at 52];
c) Petitioner's phone confession was impossible [id. at 52 -53];
d) the 911 records [id. at 53 - 54];
e) Medina's statement that “‘they' would kill this child [id. at 54];”
f) complete impeachment establishing false testimony [id. at 54 - 55];
g) Medina's claim he refused to speak with the police without an attorney [id. at 55 - 57]; and
h) false testimony regarding Petitioner's flight to Virginia. Id. at 57 - 58.

         6) Petitioner's conviction should be reversed as his due process rights were violated when the prosecution made improper remarks and engaged in prosecutorial misconduct, [including]:

a) using her position to undermine credibility and bolster the state's witnesses [id. at 58 - 60];
b) attacking the Petitioner's constitutional right to silence [id. at 60 - 61];
c) knowingly eliciting and using false testimony [state's witness Joseph Medina] [id. at 61];
d) [introducing] intentionally irrelevant and highly prejudicial evidence [Petitioner's fictional novel] after stipulating in writing not to present the same [id. at 61 - 62];
e) willfully and deliberately misstating and misrepresenting scenes from Petitioner's novel for the express purpose of illicitly prejudicing Petitioner [id. at 62 - 63];
f) intentionally misquoting witness testimony [id. at 63 - 65];
g) attacking Petitioner regarding his legal name change [id. at 65 -66];
h) inundating the trial with improper remarks, including (1) calling Petitioner a wolf in sheep's clothing; (2) bringing up Petitioner's African-American “culture;” (3) referencing the fact that no soot was found on the infant; (4) improper comments in closing argument; (5) stating that both victims died of cut throats when there was no evidence to support that; (6) in closing, stating that Joseph Medina had “ratted out” Petitioner; (7) in closing, purposely misrepresenting the title of Petitioner's novel to mislead and inflame the jury; (8) in closing, suggesting that writers (like Petitioner) concoct believable stories; (9) in closing, suggesting that if the jury “bought” Petitioner's version of events, they were buying his book; (10) using her position to discredit Petitioner; and (11) telling the jury “don't let him get away with it.” Id. at 66 - 72.

         7) Petitioner's conviction should be reversed as his due process rights were violated when the trial court made improper remarks and engaged in judicial misconduct [id. at 72][when the court]: Id. at 72.

a) in open court, made a very passionate and prejudicial argument expressing his opinion of the Petitioner's guilt and culpability in the crimes he had been charged [id. at 72 - 73];
b) coerced a state witness [Joseph Medina] into testifying for the state at Petitioner's trail by rejecting a plea deal the state had offered Medina two years earlier, to pressure Medina into offering more information adverse to Petitioner [id. at 73 - 74];
c) during Petitioner's cross-examination, permitting the prosecutor to impeach Petitioner by attacking his constitutional right to remain silent [id. at 75];
d) during Petitioner's cross-examination, permitting the state to impeach Petitioner's testimony by permitting the prosecutor to present irrelevant, unduly prejudicial, highly inflammatory and improper impeachment evidence in the form of a novel Petitioner had written earlier [id. at 75 - 77];
e) during Petitioner's testimony, the trial judge did not look at him attentively the way he looked at other witnesses, creating the visual impression to those watching that he neither liked nor believed Petitioner; the only time the court looked at Petitioner was to “scowl at, interrupt, or chastise the Petitioner [id. at 77];
f) during Petitioner's cross exam, accusing Petitioner, in front of the jury, of being evasive and argumentative in his answers to the prosecutor [id.]; and
g) throughout the pretrial motions hearings and throughout the trial itself, the court consistently attempted to guide and advise the prosecutor on how to conduct her case against Petitioner. Id. at 78.

         By per curiam opinion entered on June 5, 2014, the WVSCA affirmed Petitioner's conviction after finding his claims to be without merit. ECF No. 52-15. Prophet petitioned the WVSCA for rehearing; the WVSCA denied the same on August 26, 2014. See ECF No. 52-16 at 3 - 4. The WVSCA finalized its decision via mandate issued September 2, 2014. ECF No. 52 - 15 at 32. Prophet then petitioned the United States Supreme Court for a writ of certiorari; the petition was denied on November 17, 2014. Prophet v West Virginia, 135 S.Ct. 683, 684, 190 L.Ed. 396 (2014). On December 4, 2014, Prophet filed a petition for rehearing, seeking the United States Supreme Court's reconsideration of its denial of certiorari; on January 12, 2015, the Supreme Court denied the petition for rehearing. Prophet v. West Virginia, 135 S.Ct. 1035, 190 L.Ed.2d 900 (2015).[10]

         C. Petitioner's State Habeas Petition

         On or about February 2, 2015, Petitioner filed a pro se habeas petition in the Circuit Court of Berkeley County, West Virginia, Case No. 15-C-66. See ECF No. 52-16 at 15. Therein, Petitioner raised thirteen (13) grounds for relief, including nine (9) sub-grounds of prosecutorial misconduct; nine (9) sub-grounds of judicial misconduct; seven (7) sub-grounds of ineffective assistance of counsel (“IAC”); and two (2) sub-grounds of IAC of appellate counsel. See ECF No. 52-16 at 5 - 13 & 25 - 165. Those claims were:

         Ground 1: The Petitioner's state and federal constitutional rights - to due process of law and to a fair trial by an impartial jury - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, by the prejudicial pre-trial and trial publicity that infected his trial. ECF No. 52-16 at 48.

         Ground 2: The Petitioner's state and federal constitutional rights - to due process of law and to a fair trial by an impartial jury - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, when the trial court prejudicially refused to strike two challenged jurors for cause. Id. at 50.

         Ground 3: The Petitioner's state and federal constitutional rights - to due process of law and to a fair trial by an impartial jury - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, by the prosecutor's knowing use of false testimony used to obtain the Petitioner's conviction[][id. at 59][specifically]:

a) Joseph Medina's claim of not having spoken to the police initially, and without the presence of an attorney [id. at 60]; and
b) Joseph Medina's claim that Petitioner had confessed to the crime in question. Id. at 65.

         Ground 4: The Petitioner's state and federal constitutional rights - to due process of law, to a fair trial by an impartial jury, to not be compelled to be a witness against himself, to equal protection of the laws, to present a defense, to the assistance of counsel, and to the access of evidence - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article Ill. §§ 3, 5, 10 and 14, when the state impeached the Petitioner's credibility by fundamentally unfair means[][id. at 68][when the prosecutor]:

a) repeatedly questioned and made argument regarding Petitioner's post-Miranda silence [id. at 70];
b) repeatedly asserted that Petitioner's due process-mandated entitlement to discovery evidence aided the Petitioner in deceiving the jury [id. at 75];
c) implicitly and illicitly utilized the privileges of the attorney-client relationship to Petitioner's detriment [id. at 77]; and
d) repeatedly accused Petitioner of having contemporaneously committed an uncharged and unindicted felony crime during the trial. Id. at 78.

         Ground 5: The Petitioner's state and federal constitutional rights - to due process of law, to a fair trial by an impartial jury, and to the equal protection of the laws - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 3, 10 and 14, when the state rendered the Petitioner's trial fundamentally unfair by introducing at trial legally inadmissible and unduly prejudicial evidence in the form of a fictional novel previously authored by the Petitioner. Id. at 79.

         Ground 6: The Petitioner's state and federal constitutional rights - to due process of law, to a fair trial by an impartial Jury, and to present a complete defense-were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, when the trial court refused to give the jury an instruction on the defense theory of the case. Id. at 91.

         Ground 7: The Petitioner's state and federal constitutional rights - to due process of law, to not be compelled to be a witness against himself, to the assistance of counsel, to the access of evidence, and to a fair trial by an impartial jury - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 5, 10 and 14, when the prosecutor engaged in prosecutorial misconduct and made numerous improper remarks before the jury[][id. at 94][specifically, by]:

a) attacking the Petitioner's constitutionally protected rights [id. at 96];
b) using her position as an agent of the state to undermine the credibility of Petitioner and to bolster the state's witnesses [id.];
c) knowingly utilizing the false testimony of Joseph Medina [id. at 97];
d) introducing, under the guise of impeachment, knowingly irrelevant, legally inadmissible, and unduly prejudicial evidence into the trial (in the form of Petitioner's previously-written novel) [id. at 98];
e) knowingly and deliberately misstated, misrepresented, and distorted scenes and narratives from the Petitioner's novel for the obvious purpose of prejudicing Petitioner [id.];
f) deliberately misstating and misquoting witness testimony [id. at 100];
g) repeatedly argued supposed facts not in evidence [id. at 106];
h) inundated the trial with improper remarks [id. at 107]; and
i) engaged in various other forms of misconduct which were more subtle though no less prejudicial to Petitioner. Id. at 111.

         Ground 8: The Petitioner's state and federal constitutional rights - to due process of law, to not be compelled to be a witness against himself, to the assistance of counsel, to the access of evidence, to equal protection of the laws, and to a fair trial by an impartial jury - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, Sections 3, 5, 10 and 14, when the trial court engaged in bias and misconduct and made prejudicial remarks before the jury[][id. at 115][when]:

a) prior to trial, it made an improper, passionate, and extremely prejudicial and biased remark in open court, regarding the court's opinion of Petitioner's guilt and culpability regarding the crime at issue [id. at 117];
b) prior to trial, it deliberately, improperly, and prejudicially manipulated or otherwise coerced a state witness into artificially strengthening the state's case against Petitioner [id. at 118 - 19];
c) during jury selection, it improperly and prejudicially refusing to strike two potential jurors for cause, one of whom ended up on Petitioner's jury [id. at 120];
d) during Petitioner's cross-examination, it permitted the prosecutor to present, under the guise of impeachment, knowingly irrelevant, legally inadmissible, and unduly prejudicial evidence to the jury in the form of a fictional novel that had been stipulated out [id.];
e) during Petitioner's cross-examination, it permitted the prosecutor, over defense objection to unlawfully attack Petitioner's post-Miranda silence [id. at 123];
f) during Petitioner's cross-examination, it accused Petitioner, in front of the jury, of being “argumentative, ” inconsistent, and evasive in his answers to the prosecutor [id. at 124];
g) by failing to dutifully intervene to limit and attempt the prosecutor's improprieties during closing argument [id. at 130];
h) by attempting to guide and advise the prosecutor throughout the entirety of the case on how to successfully conduct the prosecution of her case against Petitioner [id. at 131]; and
i) by engaging in other more subtle, though no less prejudicial conduct to the detriment of Petitioner. Id. at 133.

         Ground 9: The Petitioner's state and federal constitutional rights - to due process of law, to equal protection of the laws, to not have cruel and unusual punishment inflicted on him, and to a fair trial - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and Under the West Virginia Constitution's Article III, §§ 3, 10 and 14, when he was convicted by evidence insufficient to establish his guilt beyond a reasonable doubt for every element of the charged crime[s]. Id. at 136.

         Ground 10: The Petitioner's state and federal constitutional rights - to due process of law, to present a complete defense, to a fair trial, and to the effective assistance of counsel - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, by the ineffective assistance of state-appointed trial counsel[][id. at 143][by their failure to]:

a) thoroughly and independently investigate the crime at issue [id. at 144];
b) file a pretrial motion to suppress the introduction of Petitioner's violent fictional novel entitled “Enter the Fire: Seven Days in the Life [id. at 145];”
c) request that a limiting instruction be given to the jury that the Petitioner's fictional novel was to be limited to a specific and legitimate purpose to impeach, and was not to be used as evidence of a material or substantive fact [id. at 146];
d) incorporate each and every individual and collective assertion and argument of error made in Grounds 1 - 9 of this petition [id. at 147];
e) continuously and strenuously object to, and move for a mistrial for, the prosecutor's improper and unconstitutional attacking of Petitioner's post-Miranda/pre-trial silence [id.];
f) object to, and move for a mistrial for, the prosecutor's improper and unconstitutional remarks made during closing arguments [id. at 150];
g) object to, and move for a mistrial for, the trial court's many instances of blatant bias and misconduct [id. at 152]; and by failing to
h) object to a myriad of prejudicial circumstances throughout the entirety of the trial. Id. at 153.

         Ground 11: The Petitioner's state and federal constitutional rights - to due process of law, and to a fair trial by an impartial jury - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, by the cumulative effect of multiple trial errors[][id. at 156][said errors consisting of]:

a) each and every individual and collective assertion and argument of error made in Grounds 1 - 10 of this petition [id. at 157];
b) the prosecutor's failing to provide pretrial notice of its intent to use 404(b) evidence against the Petitioner [id.];
c) the trial court's failure to change the venue of trial due to massive pre-trial publicity adverse to Petitioner [id.]; and
d) state witness Lt. Harmison deliberately and unnecessarily informing the jury during his testimony that Petitioner was being held in the local regional jail. Id.

         Ground 12: The Petitioner's state and federal constitutional rights - to due process of law, and to the effective assistance of counsel - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and assistance of his state-appointed appellate counsel[][id. at 158][by failing to]:

a) present certain grounds in Petitioner's direct appeal that were obviously stronger than those presented [id. at 159]; and failing to
b) present federal constitutional questions to the WVSCA, or citing to United States Supreme Court constitutional law in Petitioner's direct appeal. Id.

         Ground 13: The Petitioner's state and federal constitutional rights - to due process of law, and to the equal protection of the law - were violated, under the United States Constitution's Fifth, Sixth and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 3 and 10, and Article VIII, § 4, when the WVSCA violated its state constitution so as to deny the Petitioner a state-created liberty interest, and when it failed to provide the Petitioner meaningful appellate review. Id. at 160.

         Thereafter, on February 11, 2015, the circuit court appointed counsel[11] and directed Petitioner to file an amended petition containing all of his claims. ECF No. 52-17.

         On May 12, 2015, Petitioner filed his amended petition raising the following thirteen grounds for relief:

         1) Petitioner asserts he was deprived of his Federal and State Constitutional [rights] to Due Process and to a fair trial due to the cumulative effect of myriad trial errors. ECF No. 52-18 at 44.

a) Petitioner asserts that the cumulative errors set forth below in Assignment of Errors 2 - 11 denied his right to Due Process and to a fair trial. Id.
b) Petitioner asserts that the State's failure to provide notice regarding its intent to introduce 404(b) evidence against him denied his right to Due Process and to a fair trial. Id.
c) Petitioner asserts that the trial court's failure to change the venue of the trial due to wide-spread pre-trial publicity adverse to Petitioner denied his right to Due Process and to a fair trial. Id.
d) Petitioner asserts that the testimony of State witness, Lieutenant Harmison [to the effect] that Petitioner was incarcerated at the time of trial denied his right to Due Process and to a fair trial. Id.

         2) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process and to a fair trial by an impartial jury which was unduly influenced by pre-trial and trial publicity. Id. at 46.

         3) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process and to a fair trial by an impartial jury when the trial court failed to strike two jurors for cause. Id. at 48.

         4) Petitioner asserts that he was deprived of his federal and state constitutional [rights] to due process and to a fair trial when the prosecutor used [the] false testimony of Joseph Medina. Id. at 54.

a) Petitioner asserts that the testimony of Joseph Medina that he refused to speak with law enforcement until he had a lawyer was false. Id. at 56.
b) Petitioner asserts that the testimony of Joseph Medina that Petitioner confessed to the crimes was false. Id. at 59.
c) Petitioner asserts that the evolution of Joseph Medina's testimony demonstrates the falsity of that testimony. Id.

         5) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process and to a fair trial when the prosecutor impeached Petitioner through unfair means[][id. at 60][by]:

a) the prosecutor's inquiries into his post-arrest silence, which denied his right to due process and to a fair trial [id.]
b) the prosecutor's characterization of fabrication based upon discovery turned over to defense [which was] . . . tantamount to questioning him as to his post-arrest silence[, ] which denied his right to due process and to a fair trial [id.]
c) the prosecutor's assertion that Petitioner never recounted the version of facts to anyone prior to taking the witness stand [which]violated the attorney-client privilege because Petitioner did relay that information to his attorneys[, ] . . . denied his right to due process and a fair trial [id.]; and d) the prosecutor's closing argument which characterized Petitioner [as] a liar . . . [which] denied his right to due process and a fair trial. Id. at 61.

         6) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process, to a fair trial, and to equal protection when the trial court failed to exclude evidence regarding his book of fiction[][id. at 68][because]:

a) evidence regarding his book of fiction was beyond the scope of direct exam [id.];
b) evidence regarding his book should have been excluded because it was irrelevant and/or the evidence was too prejudicial when weighed under the 403 balancing test [id. at 69];
c) evidence regarding his book was improper impeachment through the use of undisclosed 404(b) evidence [id.];
d) the trial court failed to give a limiting instruction cautioning the jury that Petitioner's book of fiction was not evidence of a material or substantive fact [id.]; and
e) evidence regarding his book of fiction was used as extrinsic evidence to prove specific instances of conduct under Rules 608 and 609. Id.

         7) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process, to a fair trial, and to present a complete defense when the trial court failed to give a jury instruction on the defense theory of the case. Id. at 78.

         8) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process, to a fair trial, to assistance of counsel and to freedom from self- incrimination when the prosecutor engaged in misconduct[] [id. at 81][by]:

a) improperly inquiring into Petitioner's post-arrest silence [id.];
b) improperly undermining Petitioner's credibility and bolstering state witnesses [id.];
c) improperly using the false testimony of Joseph Medina [id.]; d) cross-examining Petitioner about his book [id.];
e) improperly misstating the contents of Petitioner's book [id.];
f) misstating and misquoting witness testimony [id.]; g) arguing facts not in evidence [id.];
h) making improper opening statement and closing argument [id.]; and
i) engaging in other forms of more subtle misconduct. Id. at 82.

         9) Petitioner asserts he was deprived of his federal and state constitutional [rights] to due process, to a fair trial, to assistance of counsel, to freedom from self-incrimination, and to equal protection when the trial court engaged in misconduct[][id. at 87][by]:

a) making prejudicial comments during the pre-trial hearing [id. at 88];
b) coercing Joseph Medina's testimony by rejecting his plea deal [id. at 89];
c) failing to strike two jurors for cause [id.];
d) admitting Petitioner's book of fiction into evidence [id.];
e) allowing the prosecutor to cross-examine Petitioner regarding his post-arrest silence [id. at 90];
f) finding that Petitioner was argumentative and evasive while answering the prosecutor's questions during cross-examination [id.];
g) failing to correct the prosecutor during closing argument [id. at 91];
h) coaching the prosecutor on how to best advance her case [id.]; and
i) making other biased rulings and remarks during trial, such as (1) the defense theory of the case was an unfair surprise to the state; (2) its failure to look at Petitioner while testifying on cross exam; and (3) its “10 minutes left) comment during closing as Petitioner's counsel reached a high point in his argument. Id. at 92.

         10) Petitioner asserts he was deprived of his federal and state constitutional right[s] to due process, to a fair trial, to equal protection, and to freedom from cruel and unusual punishment as there was insufficient evidence upon which to base his first degree murder conviction[s]. Id. at 92.

         11) Petitioner asserts IAC at trial in violation of his federal and state constitutional right[s] to due process, to a fair trial, and to present a complete defense[][id. at 94][by]:

a) failing to investigate the underlying crime [id. at 96];
b) failing to file a motion in limine to exclude evidence regarding his book of fiction [id. at 97];
c) failing to request a limiting instruction on that his book be used only for impeachment purposes [id.];
d) failing to object to the prosecutor's questioning of Petitioner's post-arrest silence [id.];
e) failing to make appropriate objections during the State's closing argument [id. at 98];
f) failing to object to the myriad issues of bias and misconduct of the trial court [id.];
g) failing to make appropriate objections to raise proper grounds for Petitioner's post-trial motions [id.];
h) failing to relay [Petitioner's] version of events to the prosecutor regarding Petitioner's innocence [id. at 100]; and
i) failing to move for a mistrial[, ] based upon Petitioner's consistent representations to counsel prior to trial. Id.

         12) Petitioner asserts IAC in violation of his federal and state constitutional right[s] to due process and to effective assistance of counsel[][id.][by appellate counsel's failure to]:

a) present certain grounds in Petitioner's direct appeal that were obviously stronger than those presented [id.]; and
b) raise present Federal Constitutional questions or cite to United States Supreme Court authority in Petitioner's direct appeal. Id. at 102.

         13) Petitioner asserts he was deprived of his federal and state constitutional right[s] to due process and to equal protection when the . . . [WVSCA] failed to fully analyze each and every error raised by Petitioner on appeal. Id.

         Further, Petitioner also refused to waive Losh[12] list grounds challenging:

         14) Petitioner's mental competency at the time of the crime [id. at 104];

         15) Petitioner's mental competency at trial [id. at 105];

         16) the suppression of evidence by the state [id.];

         17) the falsification of a transcript by the state [id.];

         18) the court's failure to conduct a preliminary hearing [id.];

         19) the composition of the grand jury or its procedure [id.];

         20) any defects in the indictment [id.];

         21) improper venue [id.];

         22) pre-indictment delay [id.];

         23) the court's refusal to subpoena witnesses [id. at 106];

         24) the state's failure to turn over witness notes [id.]; and

         25) the state's use of informants to convict. Id.[13]

         By Order entered June 24, 2015, the circuit court dismissed grounds 2 and 3 because Petitioner had failed to challenge pre-trial publicity and the court's refusal to strike jurors for cause during trial and on direct appeal. ECF No. 52-19 at 11-12. The also court dismissed grounds 4, 5, 6, 7, 8, and 10, finding that they were res judicata by virtue of the WVSCA's having already fully adjudicated those grounds in Petitioner's direct appeal. Id. at 12 - 16, 18. The court dismissed ground 9, finding that Petitioner had failed to advance adequate factual and/or legal support for the claim. Id. at 16 - 18. Ground 13 was dismissed because there was no evidence to support the claim [id. at 18 - 19]; Grounds 14 - 25 were dismissed for failing to contain any factual support [id. at 19 - 20]; and the court directed Respondent to answer grounds 1, 11, and 12 of the amended petition. ECF No. 52-19 at 11 & 18. Following Respondent's answer and motion to dismiss [ECF No. 52 - 20], in an October 28, 2015 Order, the court noted that the case had been “fully briefed and an evidentiary hearing . . . would not aid the Court in rendering its opinion[]” [ECF No. 52-21 at 9], before denying relief on the remaining three claims. Id. at 14.

         On November 10, 2015, in Case No. 15-1092, Petitioner noticed his pro se appeal to the WVSCA of the circuit court's orders, denying his habeas petition(s).[14] ECF No. 52-22. In his brief on appeal, Petitioner's prayer for relief asserts that

[a]dditionally, since the circuit court's Order denying the Petitioner relief on his habeas corpus claims relied almost exclusively on the West Virginia Supreme Court of Appeals' appellate decision concerning this matter, and being that any possible remand of this matter back to the circuit court for proper and fair adjudication of the same would be futile, the Petitioner hereby invokes Original Jurisdiction of this Honorable Court, pursuant to the West Virginia Constitution, Article VIII, Section 3, and West Virginia Code § 51-13, and prays that this Honorable Court, pursuant to West Virginia Code § 53-4A-1 et seq., issues a Writ of Habeas Corpus Ad Subjiciendum in the case at bar and vacates the illegal convictions and sentences obtained against the Petitioner at his criminal trial, in violation of both the State and Federal Constitutions. Petitioner further requests that this Court thoroughly review the entirety of his very detailed pro se Habeas Corpus Petition and Memorandum of Law in support thereof, originally filed in the circuit court of Berkeley County, and which pro se petition and Memorandum of Law are hereby fully adopted and incorporated herein, and attached hereto, with the just and fervent desire that this Court carefully consider and, openly and on-the-record, address and rule upon the actual merits of the Federal claims found therein. Lastly, the Petitioner affirmatively asserts that all of the claims made in this petition for appeal and the fully adopted and attached pro se habeas corpus petition and Memorandum of Law are supported on the face of the pretrial, trial, and post conviction records in this matter, which are also attached hereto.

See ECF No. 52-23 at 8 (emphasis added). Petitioner raised eleven grounds of error:

         1) the Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law, by summarily dismissing Grounds 2 through 8 and 10 of the Petitioner's habeas corpus claims for relief as being either waived or fully and finally adjudicated. ECF No. 52-23 at 21.

         2) The Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law, by denying the relief requested in Petitioner's petition for writ of habeas corpus, as Petitioner's state and federal constitutional rights were clearly violated under the United States Constitution's Fifth, Sixth, and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 3, 5, 10, and 14, when at trial, the state impeached the Petitioner's credibility by fundamentally unfair means by attacking his post-Miranda[15] silence. Id. at 25.

         3) The Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law, by denying the relief requested in Petitioner's petition for writ of habeas corpus, as Petitioner's state and federal constitutional rights were clearly violated under the United States Constitution's Fifth, Sixth, and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 3, 10, and 14, when the state rendered the Petitioner's trial fundamentally unfair by introducing legally inadmissible and unduly prejudicial evidence to the jury in the form of a fictional novel previously authored by the Petitioner. Id. at 30.

         4) The Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law by denying the relief requested in Petitioner's petition for writ of habeas corpus, as Petitioner's state and federal constitutional rights were clearly violated under the United States Constitution's Fifth, Sixth, and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 3, 5, 10, and 14, when at trial:

a) the state knowingly used false testimony [id. at 31];
b) the prosecutor engaged in prosecutorial misconduct [id.];
c) the prosecutor unlawfully attacked Petitioner's constitutional rights to silence, evidence, and counsel [id. at 33];
d) used her position and status as a state agent to undermine Petitioner's credibility and bolster the testimony of state witnesses [id.];
e) improperly presented, under the guise of impeachment, unduly prejudicial evidence in the form of a fictional novel previously authored by Petitioner [id.];
f) deliberately misquoted numerous witnesses' testimony, including Petitioner's [id.];
g) repeatedly argued supposed facts not in evidence [id.];
h) inundated the jury with improper remarks during closing argument [id.]; and
i) engaged in other misconduct that unduly prejudiced Petitioner. Id.

         5) The Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law, by denying the relief requested in Petitioner's petition for writ of habeas corpus, as Petitioner's state and federal constitutional rights were clearly violated under the United States Constitution's Fifth, Sixth, and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 3, 5, 10, and 14, when the trial court engaged in bias and misconduct and made prejudicial remarks before the jury [id. at 34] [including]:

a) prior to trial, making an improper, passionate, and extremely prejudicial and biased remark in open court regarding his opinion of the Petitioner's guilt and culpability in the crimes at issue [id. at 35];
b) prior to trial, deliberately, improperly, and prejudicially manipulating, or otherwise coercing, a State witness into artificially strengthening the State's case against the Petitioner [id.];
c) during jury selection, improperly and prejudicially refusing to strike two potential jurors for cause, one of which ended up on the Petitioner's impaneled jury [id.]
d) during cross-examination, permitting the prosecutor, under the guise of impeachment, to present knowingly irrelevant, legally inadmissible, and unduly prejudicial evidence to the jury in the form of a fictional novel that had been stipulated out [id.];
e) during cross-examination, permitting the prosecutor, over defense objection, to attack the Petitioner's post-Miranda silence [id.];
f) during cross-examination, accusing the Petitioner, in front of the jury, of being "argumentative," inconsistent, and evasive in his answers to the prosecutor [id.];
g) not dutifully, under State law, intervening to limit and attempting to correct the prosecutor's improprieties during closing arguments [id.];
h) attempting to guide and advise the prosecutor throughout the entirety of the case on how to successfully conduct the prosecution of her case against the Petitioner [id.]; and
i) engaging in other more subtle, though no less prejudicial, conduct to the detriment of the Petitioner. Id.

         6) The Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law, by denying the relief requested in Petitioner's petition for writ of habeas corpus, as Petitioner's state and federal constitutional rights were clearly violated under the United States Constitution's Fifth, Sixth, and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14 when the trial court prejudicially refused to strike two challenged jurors for cause. Id. at 36.

         7) The Circuit Court of Berkeley County abused its discretion, arrived at a clearly erroneous finding, and disregarded the law, by denying the relief requested in Petitioner's petition for writ of habeas corpus, as Petitioner's state and federal constitutional rights were clearly violated under the United States Constitution's Fifth, Sixth, and Fourteenth Amendments, and under the West Virginia Constitution's Article III, §§ 10 and 14, by the ineffective assistance of his trial . . . counsel[][id. at 37] [when trial counsel failed to]:

a) thoroughly and independently investigate the crime at issue [id.];
b) file a pretrial motion to suppress the introduction of the Petitioner's violent fictional novel entitled Enter the ...

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