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Gray v. Ballard

United States District Court, N.D. West Virginia

February 8, 2018

ROSSI ANTHONY GRAY, JR., Petitioner,
v.
DAVID BALLARD, WARDEN, Respondent.

          Bailey, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On March 6, 2017, pro se Petitioner, Rossi Anthony Gray, Jr., filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. ECF No. 1. Petitioner was granted leave to proceed in forma pauperis. ECF No. 5. On March 17, 2017, Magistrate Judge Michael John Aloi conducted a preliminary review of the file, determined that summary dismissal was not appropriate and directed Respondent to show cause why the petition should not be granted. ECF No. 9. Following two court approved enlargements of time, Respondent filed his Response together with a Motion to Dismiss as Unexhausted and Procedurally Barred with a Memorandum in Support and exhibits. ECF Nos. 16-18. On June 5, 2017, a Roseboro Notice was issued. ECF No. 19. On June 26, 2017, Petitioner filed his Response. ECF No. 22. On July 5, 2017, Petitioner refiled his response with a completed certificate of service. ECF No. 23. On July 19, 2017, Respondent filed a Reply. ECF No. 25. On September 15, 2017, this matter was transferred to the undersigned pursuant to an Order entered by the Honorable Gina M. Groh, Chief United States District Judge.

         II. Relevant Facts and Procedural History A. Indictment, Trial and Direct Appeal

         On January 10, 2010, Petitioner was indicted by a Ohio County grand jury on two counts of sexual assault in the second degree in violation of W.Va. Code § 61-8B-4(a)(1); four counts of sexual assault in the first degree in violation of W.Va. Code § 61-8B-7(a)(3); one count of burglary in violation of W.Va. Code § 61-3-11; and one count of attempted unlawful assault in violation of W.Va. Code §§ 61-11-8(2) and 61-2-9(a).[1]ECF No. 16-1. Following a jury trial, Petitioner was convicted of five counts of felony sex charges, to-wit, the two counts of sexual assault in the second degree and three of the counts of sexual assault in the first degree.[2] ECF No. 16-2. Thereafter, the State of West Virginia filed a Recidivist Information alleging that Petitioner was the same individual convicted of three felony offenses, to-wit, sodomy in 1978; unlawful assault in 1982; and driving under the influence of alcohol, third offense in 2001. Id. A sentencing hearing was conducted on January 31, 2006, and on February 13, 2006, the trial judge entered an order which first found that the three prior felony offenses were all violent offenses. Id. at 4. In addition, the trial judge found that the triggering offense giving rise to the Recidivist Information, Count 5 of the indictment for sexual abuse in the first degree was also a violent offense. Id. Petitioner was then sentenced as follows:

1. As to Count 1 of ‘Sexual Assault, Second Degree', the Defendant is sentenced to not less than 10 nor more than 25 years in the state penitentiary;
2. As to Count 2 of ‘Sexual Assault, Second Degree', the Defendant is sentenced to not less than 10 nor more than 25 years in the state penitentiary;
3. As to Count 3 of “Sexual Abuse, First Degree', the Defendant is sentenced to not less than 1 nor more than 5 years in the state penitentiary;
4. As to Count 4 of ‘Sexual Abuse, First Degree'', the Defendant is sentenced to not less than 1 nor more than 5 years in the state penitentiary;
5. As to Count Five of ‘Sexual Abuse, First Degree', the triggering offense for the Recidivist Information, the Defendant is sentenced to a life sentence.

ECF No. 16-2 at 4-5. The sentencing order also included a recommendation that Petitioner not receive parole. Id. at 5. Finally, the sentencing order appointed Petitioner's trial counsel, Andrew Mendelson as appellate counsel. Id.

         On March 5, 2006, Petitioner, by counsel, filed a Notice of Intent to Appeal which listed seven grounds for appeal:

(1) The verdict of guilty was contrary to weight of the evidence in that the evidence was manifestly inadequate;
(2) The verdict of guilty was not supported by substantial evidence such was sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt;
(3) Prejudicial opening remarks of the Circuit Court when the Court misspoke and announced that the trial was going to be on an eight count indictment and proceeded to list the specific crimes charged therein;
(4) Ineffective assistance of counsel occasioned by lack of attorney/ client relationship[3];
(5) Allowing the complaining witness to testify despite the court's knowledge that she had intentionally destroyed potential exculpatory evidence;
(6) Failure to dismiss or merge cumulative counts of the indictment which violated double jeopardy; and
(7) Cumulative error.

ECF No. 16-3 at 4-7.

         On July 20, 2006, Petitioner was resentenced to allow for a timely appeal.[4]Petitioner was resentenced again on January 2, 2007, to allow for a timely appeal. ECF No. 16-5 at 2.

         On February 6, 2007, despite the fact that a Notice of Appeal was pending, and he had just been resentenced to allow for a timely appeal, Petitioner filled a pro se Petition for Writ of Habeas Corpus in the circuit court alleging ineffective assistance of counsel for failing to file a direct appeal and failing to perform any investigation. ECF No. 16-6 at 5. On February 20, 2017, the Petition was denied as moot in light of the resentencing on January 2, 2017. Thereafter, Petitioner was again resentenced on May 7, 2007 ECF No. 18-8 at 2], and February 26, 2008, to allow for a timely appeal. ECF No. 16-9 at 2.

         Petitioner filed an original jurisdiction habeas in the Supreme Court of Appeals of West Virginia (“SCAWV”), which asked the Court to examine whether he had been denied his right to appeal due to ineffective assistance of counsel on appeal, and whether the trial court abused its discretion in failing to dismiss the appeal. On However, based on the records available, it appears that prior to sentencing, Petitioner was represented by Mr. Barnabei and Mr. Olejasz.

         November 5, 2008, a rule to show cause was issued, directed against Respondents Andrew Mendelson and Kevin Neiswonger to show cause why an appeal had not been filed on behalf of Petitioner. In response, counsel indicated that were ready to file the appeal and asserted that they would have done so already if not for Petitioner's erratic behavior. This behavior included giving counsel inconsistent directives, making allegations against them, including the filing of a complaint with the Lawyer Disciplinary Board that was ultimately dismissed due to lack of evidence, and ordering counsel to stop working on the appeal. The SCAWV found that “[d]espite these delays allegedly caused by the Petitioner, they had a duty to move the appeal forward. When disagreements arise between counsel and client, counsel has wide deference and should proceed using his best professional judgment. ‘Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.'” State ex rel. Gray v. Ballard, 227 W.Va. 265, 266, 708 S.E.2d 459, 460 (2009) (internal citations omitted) (“Gray I”). Accordingly, the SCAWV concluded that Petitioner was not entitled to habeas corpus relief, but that he was entitled to have an appeal filed forthwith. The case was then remanded to the Circuit Court of Ohio County with directions to resentence Petitioner for purposes of renewing the time period for appeal. Id. On February 3, 2009, Petitioner was resentenced to allow for a timely appeal. ECF No. 16-10 at 2.

         On March 17, 2009, the Petition for Appeal was filed. ECF No. 16-11. Counsel raised the following assignments of error:

A. THE TRIAL COURT DENIED PETITIONER A FAIR TRIAL IN NOT IMPOSING CERTAIN SANCTIONS UPON THE STATE OF WEST VIRGINIA DUE TO THE FACT THAT THE VICTIM'S DIARY WAS PARTIALLY DESTROYED BY HER DESPITE DIRECTIVES TO MAINTAIN ITS CONDITION.
1. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE THE TESTIMONY OF THE ALLEGED VICTIM.
2. THE TRIAL COURT DENIED PETITIONER A FAIR TRIAL BY REFUSING TO FIND THAT SPOILIATION OF EVIDENCE HAD OCCURRED AND IN FAILING TO GIVE A SPOILIATION INSTRUCTION TO THE JURY.
B. THE TRIAL COURT ERRED BY FAILING TO DISMISS COUNT II AND IV OF THE INDICTMENT AS BEING DUPLICITOUS.[5]
C. THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO AN EFFECTIVE ATTORNEY ATTORNEY/CLIENT RELATIONSHIP.
D. THE TRIAL COURT VIOLATED PETITIONER'S CONSTITUTIONAL RIGHT TO A TRIAL BY AN IMPARTIAL AND OBJECTIVE JURY WHEN IT MISTAKENLY ADVISED THE POENTIAL JURORS IN ITS PRELIMINARY INSTRUCTIONS THAT THE DEFENDANT HAD BEEN CHARGED WITH AN EIGHT COUNT INDICTMENT.

ECF No. 16-11 at 6.

         Pursuant to Anders vs. State of California, 386 U.S. 738 (1964), counsel submitted the following assignments of error to be pursued by Petitioner:

         1. Multiple issues of ineffective assistance of counsel:

a. Failure of Trial Counsel to provide the Petitioner with photographs.
b. Failure of Trial Counsel to provide the Petitioner with certain documents for his review.
c. Failure of Trial Counsel to call a rebuttal DNA witness.
d. Failure of Trial Counsel to allow the Defendant to view the “scene of the crime.” e. Failure of Trial Counsel to prevent the introduction into evidence of photographs of bruises on the alleged victim's arms.
f. Failure of Trial Court to object to a faulty indictment.
g. Failure of Trial Counsel to send jury questionnaires to potential jurors.
h. Failure of Trial Counsel to ask where the photos of the victim originated.
i. Failure of Trial Counsel to subpoena Dr. Burkland to testify.
j. Failure of Trial Counsel to call any rebuttal witnesses at all.
k. Failure of Trial Counsel's private investigator to prove the Petitioner's innocence.
l. Failure of Trial Counsel to ask certain questions that the Petitioner desired to be asked during trial.
m. Failure of Trial Counsel to prevent the admission of a phone call made by the Petitioner to the police department asking of any warrants existed for his arrest for sexual assault.

         2. Trial Court erred in permitting the Petitioner's former attorney to testify at his recidivist proceeding.

         3. The Doctor who examined the alleged victim never interviewed any witnesses.

         4. The imposition of consecutive sentences is improper.

         5. Two jurors should not have been permitted to serve on the jury.

         6. The Court erred in allowing the victim's father to remain in the Courtroom when he worked ...


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