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Widmyer v. Ballard

United States District Court, N.D. West Virginia

February 7, 2018

WILLIAM TRAMPAS WIDMYER, Petitioner,
v.
DAVID BALLARD, Warden, Respondent.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On January 20, 1999, Petitioner was indicted in Jefferson County, West Virginia on six separate counts: (1) murder in the 1st degree; (2) malicious assault; (3) destruction of property; (4) breaking and entering; (5) petit larceny; and (6) possessing any vehicle knowing it to be stolen. On July 22, 1999, following a jury trial, Petitioner was convicted of all counts as contained in the indictment. ECF No. 88-5 at 7-10. On August 30, 1999, the circuit court held a sentencing hearing and sentenced Petitioner to the penitentiary for consecutive sentences of life without mercy on Count I; not less than 2 years nor more than 10 years on Count II; 1 year on Count III; not less than 1 year nor more than 10 years on Count IV; 1 year on Count V; and not less than 1 year nor more than 5 years on Count VI. ECF No. 13-2.

         Thereafter, Petitioner filed a timely petition for appeal of his conviction which raised six assignments of error. ECF No. 88-10. The West Virginia Supreme Court of Appeals (“WVSCA”) refused the petition November 1, 2000. ECF No. 88-11. On February 16, 2001, Petitioner filed a Petition for Writ of Habeas Corpus Ad Subjiciendum in the Circuit Court of Jefferson County, West Virginia, which raised 16 grounds for relief. ECF No. 88-12. On April 30, 2001, the State filed an Answer denying all allegations in the petition. ECF No. 88-17. On September 12, 2005, the circuit court ed Respondent to file a full and complete response. ECF No. 88-18. Respondent filed a response to the petition on December 5, 2005. ECF No. 88-19. On January 3, 2006, the Circuit Court issued a 47 page “Order summarily Denying Petitioner's Writ of Habeas Corpus Ad Subjiciendum.” ECF No. 18-20.

         On October 14, 2009, Petitioner filed his Petition for Appeal of the habeas denial in the WVSCA. The Petition for Appeal raised 14 assignments of error. ECF No. 88-21. On February 11, 2010, the WVSCA refused the petition. ECF No. 14-3.

         II. Section 2254 Petition

         On May 27, 2010, Petitioner filed this habeas petition pursuant to 28 U.S.C. § 2254. ECF No. 1. It raises the following 14 grounds for relief:

A. Petitioner was denied his constitutional right to the due process of law as secured by the Fifth and Fourteenth Amendments to the Constitution of the U.S.A. and his constitutional right to fair and impartial jury trial as secured by the Sixth Amendment to the Constitution of the U.S.A. when the trial court failed to instruct the petit jury that unlawful assault is a lesser included offense of malicious wounding.
B. Petitioner was denied his constitutional right to the due process of law as secured by the Fifth and Fourteenth Amendments to the Constitution of the U.S.A. and his constitutional right to a fair and impartial jury trial as secured by the Sixth Amendment to the Constitution of the U.S.A. when the trial court failed to instruct the petit jury that Murder in the Second Degree as a lesser included offense of Murder in the First Degree.
C. Petitioner was denied his constitutional rights to the due process of law as secured by the Fifth and Fourteenth Amendments to the Constitution of the United States of America and his constitutional right to a fair and impartial jury trial when the trial court instructed the petit jury on breaking and entering when the State was unable to substantially prove all elements of offense as alleged in the indictment.
D. Petitioner was denied due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the U.S.A and a fair and appropriate sentence as secured by the Eighth Amendment to the Constitution of the U.S.A. when the trial court refused to afford the petit jury in his criminal trial an opportunity to listen [to] the audiotape of defendants' statement to the police.
E. Petitioner was denied a fair and impartial jury trial as secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the U.S.A. when the Trial Judge denied Defendant's Counsel's Motion seeking recusal of the trial Judge.
F. Petitioner was denied his federal constitutional right to a fair and impartial jury trial as secured by the Sixth amendment to the U.S. Constitution and his federal constitutional right to the due process of law as secured by the Fifth and Fourteenth Amendments to the Constitution of the U.S.A. and petitioner's right to a fundamentally fair sentencing proceeding as guaranteed by the Eighth and Fourteenth Amendments to the U.S. Constitution when the Circuit Court of Jefferson County, West Virginia, permitted the State to introduce a gruesome photographs [sic] of the decedent's body.
G. Petitioner was denied his right to due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution when on the final day of the trial, petitioner was not present at the ex parte conversation between the bailiff and the deliberating jury regarding the jury's request to hear an audiotape of the petitioner's statement to police officers.
H. Petitioner's confession to an officer of the Ranson Municipal police force, obtained on November 19, 1998, in Shenandoah County, Virginia, was admitted at trial in violation of the Fifth and Fourteenth Amendment to the Constitution of the U.S.A. due to petitioner's prior request for the presence of counsel prior to the statements being made.
I. Petitioner was denied his constitutional right to due process of law as secured by the Fifth and Fourteenth Amendments to the U.S. Constitution, the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, and his right to a fair and impartial jury trial as secured by the Sixth Amendment to the U.S. Constitution when Petitioner's statement to Ranson police officer was improperly admitted at trial due to the fact that it was obtained in violation of his right to be promptly presented before a Magistrate, pursuant to W.Va. Code § 62-1-5(a) and Rule 5(a) of the West Virginia Rules of Criminal Procedure.
J. Petitioner's right to the due process of law is secured by the Fifth and Fourteenth Amendment[s] to the Constitution of the U.S.A. and his right to an impartial jury as secured by the Sixth Amendment to the Constitution of the U.S.A. when the trial court admitted petitioner's confession to Ranson Police officers because it was the fruit of an illegal arrest, made in violation of the Fourth Amendment to the Constitution of the U.S.A.
K. Petitioner was denied the fundamental fairness of due process of law as guaranteed by the Fifth and Fourteenth Amendment[s] to the Constitution of the U.S.A. when the trial jury was precluded from making a finding of murder in the first degree or murder in the second degree in compliance with W.Va. Code § 62-3-15.
L. The petitioner was deprived of the effective assistance of counsel at trial, in violation of the Sixth Amendment to the U.S. Constitution, W.Va. Code § 62-3-1, and Rule 44(a) of the West Virginia Rules of Criminal Procedure, when defense counsel failed to argue the violation of petitioner's constitutional rights and his prompt presentment as found in Grounds G-K above, at the pre-trial stage of his criminal proceedings, during trial, and in his post-trial motion for a new trial.
M. Petitioner was denied his right to the effective assistance of counsel at trial, as guaranteed by the Sixth Amendment to the U.S. Constitution when during opening and closing arguments defense counsel conceded petitioner's guilt before the jury without the petitioner's prior knowledge or consent.
N. [P]etitioner's appellate counsel was ineffective when he failed to raise the issues found in Grounds G through M of the instant petition in petitioner's direct appeal. The petitioner was, therefore, denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution.

         On July 22, 2010, Respondent filed a Motion to Dismiss as Untimely and for Failure to Exhaust State Remedies. ECF No. 13. On August 16, 2010, Petitioner filed a “Motion to Hold in Abeyance.” ECF No. 18. On October 20, 2010, the then presiding United States Magistrate Judge entered a Report and Recommendation in which he concluded that the petition was untimely, and Petitioner failed to establish an entitlement to equitable tolling. Therefore, he recommended that the petition be dismissed with prejudice and did not address the issue of exhaustion. ECF No. 22. Petitioner filed objections on November 2, 2010. ECF No. 24. On February 23, 2015, the District Court entered an Order declining to adopt the Report and Recommendation. After a comprehensive review of the state proceedings, and referring to Petitioner's numerous court-appointed lawyers, the Court found that their “'failings - of inattention, willful neglect, apathy, and worse - are the type of egregious violations of professional duty that Justice Breyer recognized could constitute ‘extraordinary circumstances' justifying equitable relief.'” ECF No. 25 at 11. Therefore, the Court found that the Petitioner was entitled to equitable tolling. The Court then stayed the proceedings pending Petitioner's presentation of his unexhausted claims to the courts of West Virginia. Id. at 13. Because no detail was provided with respect to the exhaustion of state remedies and which claims were not exhausted, the undersigned does so now before addressing the proceedings which followed the grant of stay and abeyance. Title 28, Section 2254 (b)(1)(A) of the United States Code provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State . . . .” See Meadows v. Legursky, 904 F.2d 903 (4th Cir. 1990) (a petitioner cannot petition for writ of habeas corpus in federal court until he has exhausted all of his state remedies), superseded on other grounds by Trest v. Cane, 522 U.S. 87 (1997); see also Mathews v. Evatt, 105 F.3d 907, 911 (4th Cir.), cert. denied, 522 U.S. 833 (1997) (exhaustion of state remedies requires petitioner to fairly present his claims to the state's highest court).

         To exhaust state remedies in West Virginia, a prisoner must fairly raise the federal issue on direct appeal from his conviction, Moore v. Kirby, 879 F.Supp. 592, 593 (S.D. W.Va. 1995), or in a post-conviction proceeding pursuant to West Virginia Code § 53-4A-1 et seq., followed by an appeal to the West Virginia Supreme Court of Appeals. Bayerle v. Godwin, 825 F.Supp. 113, 114-15 (N.D. W.Va. 1993).

         Additionally, Petitioner must show that the claims he raised in the state proceedings are identical to the claims he now seeks to raise in this federal habeas case. See Pitchess v. Davis, 421 U.S. 484, 487 (1975); see also Picard v. Connor, 404 U.S. 270, 275-76 (1971). The same factual grounds must be raised in support of the claims as well as the same federal (or other) legal theory for relief. Anderson v. Harless, 459 U.S. 4, 6 (1982).

         In the instant matter, the Section 2254 filed by Petitioner contained grounds for federal relief that, although factually identical to his State-court claims, were presented to the state court using legal theories that did not correspond to those raised in the 2254. More specifically, Ground A argued that Petitioner was denied due process when the trial court refused to give a lesser included offence instruction on unlawful assault, given the lack of direct evidence of malice, an element of one of the charged crimes-malicious assault. Petitioner cites Jackson v. Virginia, 443 U.S. 307, 319 (1979) to support this claim. However, Petitioner cited no law, state or federal, in support of this claim in his habeas appeal [ECF No. 13-7 at 16-17] and cited, in his direct appeal, only state law decisions regarding when lesser included offense instructions should be given, which decisions do not depend upon or otherwise address the requirements of proof beyond a reasonable doubt. ECF No. 13-3 at 19-20.

         Ground B alleges that Petitioner was entitled to a lesser included offense instruction of second degree murder because of the lack of direct evidence of premeditation and deliberation at trial. Petitioner again relies on Jackson. However, neither Jackson nor the concept for which it stands, the need for proof beyond a reasonable doubt, was presented in any of his State proceedings. ECF No. 13-3 at 17-19; ECF No. 13-7 at 14-16, 30-32.

         Ground D claims that Petitioner was denied due process and given a disproportionate sentence when the trial court refused to allow the jury to hear a tape recording of his confession after requesting to do so. This issue was not raised in Petitioner's direct appeal and no constitutional law or federal theories were raised in Petitioner's habeas appeal in support of this claim. ECF No. 13-7 at 19-20.

         In Ground E, Petitioner claims he was denied the right to a “fair and impartial jury” by the refusal of the trial court to grant trial counsel's motion to recuse the trial judge. First, Petitioner is confusing his right to an impartial judge, which flows from the Due Process Clause of the Fourteenth Amendment, rather than the Sixth Amendment right to an impartial jury. However, in either case, the claim was not presented to the state courts. In Petitioner's direct appeal, he cited only the State judicial canons of ethics and State procedural law. ECF No. 3 at 12-13. Petitioner cited no authority in support of this claim in his habeas appeal. ECF No. 13-7 at 11-12.

         Ground F alleges Petitioner was denied a fair and impartial jury and fair sentencing by the admission of gruesome photos of the decedent's body, citing the Fifth, Sixth, Eighth and Fourteenth Amendments. In Petitioner's direct appeal, the argument in support of this claim was based entirely on the West Virginia Rules of Evidence, Rules 401 and 403. ECF No. 13-3 at In Petitioner's habeas appeal, Petitioner not only relies exclusively on state rules of evidence but specifically states that the argument does not rest on a due process violation. ECF No. 13-7 at 12-14.

         Ground I asserts that the alleged failure to promptly present Petitioner to a magistrate following his arrest constituted a violation of the Due Process and Equal Protection Clauses. This prompt presentment issue was not presented in Petitioner's direct appeal, but it appears in his State habeas appeal. However, in the habeas appeal, there is no mention of the Equal Protection Clause, nor is there an explanation what protections of the Due Process Clause were abridged. Instead, it relied exclusively on West Virginia Code § 62-5-1 (arresting officer shall present the accused to a magistrate “without unnecessary delay”). ECF No. 13-7 at 27-29.

         In Ground J, Petitioner claims that the West Virginia officers who allegedly arrested and questioned him in Virginia had no authority to do so because they were acting outside their territorial jurisdiction, thus violating the Fourth Amendment. Petitioner's direct appeal does not include any claim based on these factual circumstances. Moreover, while his habeas appeal did raise these facts, it did not expressly or impliedly raise a Fourth Amendment claim. ECF No. 13-7 at 29-30.

         Therefore, in summary, the claims presented in his Section 2254 which were not exhausted, were Grounds A, B, D, E, F, I and J.

         III State Proceedings Following Stay

         On June 26, 2013, Petitioner, by counsel, filed a second Petition for Writ of Habeas Corpus and Losh List in the Circuit Court of Jefferson County, West Virginia. The Petition alleged:

(A) PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF HABEAS COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE III OF THE WEST VIRGINIA CONSTITUTION
(B) PETITIONER'S CONVICTION SHOULD BE REVERSED AS NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT MENTAL COMPETENCY DEFENSES AND ISSUES SUFFERED BY PETITIONER PREVENTED HIM FROM HAVING A RATIONAL UNDERSTANDING OF THE PROCEEDINGS
(C) PETITIONER RECEIVED A SENTENCE THAT WAS IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE III OF THE WEST VIRGINIA CONSTITUTION.
(D) PETITIONER HAS CLAIMS TO ASSERT THAT WERE IMPROPERLY DENIED DURING HIS FIRST HABEAS CORPUS PROCEEDING BECAUSE OF THE INEFFECTIVE ASSISTANCE OF HABEAS COUNSEL.[1]
(E) PETITIONER REQUESTS THAT THE REMAINING SEVEN (7) GROUNDS BE ADJUDICATED AS CONSTITUTIONAL VIOLATIONS OF DUE PROCESS ALTHOUGH SOME OF THE REMAINING ISSUES WERE ADDRESSED IN HIS PREVIOUS HABEAS CORPUS PETITION.[2]

ECF No. 88-23. By Order dated June 26, 2013, the circuit court directed Respondent to answer the petition. ECF No. 88-25. On August 30, 2013, Respondent filed his response to the second Petition for Writ of Habeas Corpus Ad Subjiciendum. ECF No. 88-26. The circuit court held a status/scheduling conference on September 12, 2013. ECF No. 88-27. During this hearing, the circuit court ordered that an evidentiary hearing be held “on the limited, threshold issue of whether [Petitioner] knowingly and intelligently waived certain grounds in his initial habeas proceeding.” Id. A hearing was held [ECF No. 88-28], and thereafter, on March 12, 2014, the court entered an “Order Denying Petition for Writ of Habeas Subjiciendum.”[3] ECF No. 88-29.

         On August 13, 2014, Petitioner appealed the circuit court's denial of his second habeas in the SCAWV, which raised six assignments of error: [1] denying the relief requested in the Second Petition for Writ of Habeas Corpus regarding ineffective assistance of habeas counsel; [2] error denying the relief requested in his Second Petition for Writ of Habeas Corpus without holding an omnibus habeas hearing; [3] error denying the relief requested in the Second Petition for Writ of Habeas Corpus regarding no valid waiver grounds in Petitioner's Losh list; [4] error denying the relief requested in the Second Petition For Writ of Habeas Corpus regarding newly discovered evidence; [5] error denying the relief requested in the Second Petition for Writ of Habeas Corpus regarding failure to address other grounds raised in the Second Petition; and [6] error denying the relief requested in the Second Petition for Writ of Habeas Corpus regarding clearly erroneous findings. ECF No. 88-30. The State filed a Response on October 22, 2014. ECF No. 88-31. Petitioner filed a Reply on October 24, 2014. ECF No. 88-32. On May 15, 2015, the WVSCA, by Memorandum Decision, affirmed the habeas court's findings. Specifically, in regards to Petitioner's fifth ground[4], the WVSAC stated that “he fail[ed] to cite to the record on appeal or to present any legal argument in regard to them. We have oft said, ‘[o]n an appeal to this Court the appellant bears the burden of showing that there was an error in the proceedings below resulting in the judgment of which he complains . . . . ‘Syl. Pt. 2, Perdue, 156 W.Va. At 467, 194 S.E.2d at 658. Thus, we decline to further review this assignment of error.” ECF No. 88-33 at 8.

         IV. Reopened Section 2254 Petition

         Despite granting Petitioner a stay, on December 10, 2013, the Court mistakenly dismissed the petition without prejudice and ordered the case be removed from the active docket. ECF No. 65. On June 4, 2015, Petitioner filed a second section 2254 petition and indicated that all of his State remedies were fully exhausted. See 1:15-cv-98. On November 17, 2016, the Court vacated its “Order Dismissing Petition Without Prejudice” and ordered the Clerk of Court to reopen this matter. ECF No. 73. By order dated March 2, 2017, Respondent was directed to show cause why the petition should not be granted. ECF No. 80. On May 2, 2017, Respondent filed his response and Motion for Summary Judgment with exhibits. ECF Nos. 86-88. On May 30, 2017, Petitioner filed a Motion to Deny Respondent's Motion for Summary Judgment with a supporting memorandum. ECF Nos. 95-97. On June 8, 2017, Respondent filed a Reply. ECF No. 96. Therefore, this matter is now ripe for entry of a second Report and Recommendation.

         V. Standard of Review

         Title 28 U.S.C. §2254, as amended by the Antiterrorism and Effective Death Penalty act of 1996 (“AEDPA”), authorizes a federal district court to entertain a petition for habeas corpus relief from a prisoner in state custody, “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). When determining the merits of a § 2254 petition, the district court applies the standards set forth in § 2254(d), which provides that the habeas petition of a person in State custody “shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim” is:

(1) contrary to, or involves an unreasonable application of clearly established Federal law, as determined by the Supreme ...

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