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Pifer v. State

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

March 7, 2018

MARK A. PIFER, Petitioner,
v.
STATE OF WEST VIRGINIA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

         Omar J. Aboulhosn United States Magistrate Judge.

         Pending before the Court is Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody (Document No. 2), filed on May 31, 2016. By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 3.) Having thoroughly examined the record in this case, the undersigned respectfully recommends that the District Court deny Petitioner's Section 2254 Petition as untimely.

         PROCEDURE AND FACTS

         1. Criminal Action Nos. 10-F-108 and 10-F-181:

         On June 7, 2010, the Grand Jury of Marion County, West Virginia returned an Indictment against Petitioner charging him with Domestic Battery Third Offense in violation of W.Va. Code § 61-2-28(a) and (d) (No. 10-F-108). (Document No. 12-3.) On October 12, 2010, the Grand Jury of Marion County, West Virginia, returned an Indictment against Petitioner charging him with one count of Sexual Abuse in the First Degree in violation of W.Va. Code § 61-8B7(a)(3) (Count One) and one count of Sexual Abuse By a Parent, Guardian, or Custodian in violation of W.Va. Code § 61-8D-5 (Count Two) (No. 10-F-181). (Document No. 12-1.) On August 29, 2012, Petitioner pled guilty by Alford plea to Sexual Abuse in the First Degree (Count One) in No. 10-F-181. (Document No. 12-5 and Document No. 12-6, pp. 1 - 6.) Pursuant to the Plea Agreement, the charge of Sexual Abuse By a Parent, Guardian, or Custodian (Count Two) in No. 10-F-181 and the charge of Domestic Battery in No. 10-F-108 were dismissed. (Id. and Document No. 12-7.) On the same day, the Circuit Court sentenced Petitioner to an indeterminate sentence of one (1) to five (5) years, with credit for time served.[1] (Document No. 12-6, pp. 1 - 6.) The Circuit Court further imposed a 25-year term of supervised release and directed that Petitioner register as a sexual offender for the remainder of his life. (Id.)

         On December 27, 2012, Petitioner, by counsel, Scott A. Shough, filed a Notice of Appeal. (Document No. 12-6, p. 9 and Document No. 12-8.) In his appeal, Petitioner argued as follows: (1) The supervised release provisions under W.Va. Code § 62-12-26 are unconstitutional under the proportionality principle and the prohibition against cruel and unusual punishment under the United States and West Virginia Constitutions; and (2) The Circuit Court imposed extended supervision without considering the underlying nature of Petitioner's crime or setting forth a factual basis for the term of supervision. (Document No. 12-6, pp. 9 - 11.); State v. Pifer, 2013 WL 5708442 (W.Va. Oct. 21, 2013). By Memorandum Decision entered on October 21, 2013, the West Virginia Supreme Court affirmed Petitioner's conviction and sentence. (Id.) The final mandate order was entered on November 20, 2013. (Document No. 12-9.) Petitioner did not file a Petition for Writ of Certiorari in the United States Supreme Court.

         On May 18, 2015, Petitioner filed a “Pro se Motion for Termination of Extended Supervised Release.” (Document No. 12-11.) By Order entered on May 22, 2015, the Circuit Court appointed Mr. Shough “to represent the defendant on Defendant's Motion for Termination of Extended Supervised Release.” (Document No. 12-12.) On November 23, 2015, Petitioner, by counsel, Mr. Shough, filed a “Motion for Release from Extended Supervision.” (Document No. 12-13.) By Order entered on December 18, 2015, the Circuit Court denied Petitioner's above Motions. (Document No. 12-2 and Document No. 2-1, pp. 1 - 3.)

         2. Instant Section 2254 Petition:

         Petitioner filed the instant Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody on May 31, 2016.[2] (Document No. 2.) In his Petition, Petitioner alleges malicious prosecution and ineffective assistance of counsel as grounds for habeas relief. (Id., pp. 5 - 9.) As Exhibits, Petitioner attaches the following: (1) A copy of the Circuit Court's “Order Denying Defendant's Motion for Release From Extended Supervision” dated December 18, 2015 (Document No. 2-1, pp. 1 - 4.); (2) A copy of a letter dated April 21, 2015, addressed to Judge Michael John Aloi regarding Petitioner's treatment from “The Counseling Connection Sex Offender Treatment Program” (Id., pp. 5 - 7.); (3) A copy of a letter in support of Petitioner dated August 19, 2015, from Monica L. Helm, Case Manger from Roark-Sullivan Lifeway Center, Inc. (Id., p. 8.); (4) A copy of a letter in support of Petitioner dated September 4, 2015, from Rev. David Snead from the Union Mission (Id., p. 9.); (5) A copy of a letter in support of Petitioner dated September 13, 2015, from Rev. Monty Brown from the St. Marks United Methodist Church (Id., p. 10.); (6) A copy of a letter dated October 30, 2013, from Attorney Scott A. Shough providing Petitioner with a copy of the West Virginia Supreme Court's decision as to his direct appeal (Id., pp. 11 - 14.); (7) A copy of the Lawyer Disciplinary Board's decision dated August 24, 2012, denying Petitioner's Complaint against Christina A. Mulligan (Id., pp. 15 - 19.); (8) A copy of Petitioner's Complaint against Christina A. Mulligan as filed with the Lawyer Disciplinary Board (Id., pp. 20 - 21.); (9) A copy of Petitioner's Complaint against Heidi G. Sturm as filed with the Lawyer Disciplinary Board (Id., pp. 22 - 23.); (10) A copy of pertinent letters from Attorney Sturm to Petitioner (Id., pp. 24 - 25, 30 - 34.); and (11) A copy of the Lawyer Disciplinary Board's decision dated December 7, 2012, denying Petitioner's Complaint against Heidi M. Sturm (Id., pp. 26 - 29.)

         By Order entered on June 7, 2016, the undersigned directed Respondent to file a limited Response addressing the timeliness of Petitioner's Petition. (Document No. 7.) On July 8, 2016, Respondent filed his “Limited Response to Petition” and Memorandum in Support. (Document Nos. 11 and 13.) Specifically, Respondent argues that Petitioner's Petition is untimely and should be dismissed with prejudice for failure to file within the limitation period prescribed by 28 U.S.C. § 2244(d). (Id.)

         As Exhibits, Respondent attaches the following: (1) A copy of Petitioner's Indictment as filed in the Circuit Court of Marion County, West Virginia, in No. 10-F-181 (Document No. 12-1.); (2) A copy of the Docket Sheet for No. 10-F-181 (Document No. 12-2.); (3) A copy of Petitioner's Indictment as filed in the Circuit Court of Marion County, West Virginia, in No. 10-F-108 (Document No. 12-3.); (4) A copy of the Docket Sheet for No. 10-F-108 (Document No. 12-4.); (5) A copy of Petitioner's “Plea Agreement” and “Plea” as filed in No. 10-F-181 (Document No. 12-5.); (6) A copy of the “Plea and Sentencing Order” as filed in No. 10-F-181 (Document No. 12-6, pp. 1 - 8.); (7) A copy of the West Virginia Supreme Court's “Memorandum Decision” filed on October 21, 2013, affirming Petitioner's conviction and sentence (Id., pp. 9 - 11.); (8) A copy of the Circuit Court's “Order Dismissing Case” as filed in No. 10-F-108 (Document No. 12-7.); (9) A copy of an Order from the West Virginia Supreme Court dated July 9, 2013, directing Petitioner to file a motion for leave to file the notice of appeal and to perfect the appeal out of time (Document No. 12-8.); (10) A copy of the West Virginia Supreme Court's “Mandate” issued on November 20, 2013 (Document No. 12-9.); (11) A copy of Petitioner's “Official Certificate of Discharge” from the State of West Virginia Division of Corrections (Document No. 12-10.); (12) A copy of Petitioner's “Pro se Motion for Termination of Extended Supervised Release” dated May 18, 2015, as filed in the Circuit Court of Marion County (Document No. 12-11.); (13) A copy of the Circuit Court's “Order Appointing Counsel” entered on May 22, 2015 (Document No. 12-12.); (14) A copy of Petitioner's “Motion for Release from Extended Supervision” as filed by counsel, Scott A. Shough, on November 23, 2015 (Document No. 12-13.).

         On September 20, 2016, Petitioner filed additional documentation in support of his claim of ineffective assistance of counsel by Attorney Heidi Sturm. (Document No. 14.) Specifically, Petitioner attaches a copy of an article entitled: “Supreme Court suspends Fairmont attorney's law license” (Id., pp. 2 - 5.)

         On January 12, 2017, Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Petitioner, advising him of his right to file a response to Respondent's request for dismissal. (Document No. 15.) On February 21, 2017, Petitioner filed his Reply. (Document No. 17.) Specifically, Petitioner argues that his Petition is timely because his Section 2254 Petition was filed within one year of the Circuit Court's Order denying of his “Motion for Release from Extended Supervision.” (Id.) Additionally, Petitioner continues to set forth arguments in support of his claims of malicious prosecution and ineffective assistance of counsel. (Id.) Finally, Petitioner argues that his term of supervised release is excessive and constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Id.)

         As Exhibits, Petitioner attaches the following: (1) A copy of a letter in support of Petitioner dated August 19, 2015, from Monica L. Helm, Case Manger from Roark-Sullivan Lifeway Center, Inc. (Document No. 17-1, p. 1.); (2) A copy of a letter in support of Petitioner dated September 13, 2015, from Rev. Monty Brown from the St. Marks United Methodist Church (Id., p. 2.); (3) A copy of a letter dated April 21, 2015, addressed to Judge Michael John Aloi regarding Petitioner's treatment from “The Counseling Connection Sex Offender Treatment Program” (Id., pp. 3 - 5.); (4) A copy of Petitioner's Complaint against Heidi G. Sturm as filed with the Lawyer Disciplinary Board (Document No. 17-2, pp. 1 - 2.); (5) A copy of the Lawyer Disciplinary Board's decision dated December 7, 2012, denying Petitioner's Complaint against Heidi M. Sturm (Id., pp. 3 - 6.); (6) A copy of a letter addressed to Attorney Sturm from Petitioner dated December 6, 2011, stating that he would not participate in an evaluation and he wished to assert “prosecutorial misconduct” as grounds for dismissal (Document No. 17-3.).

         THE ...


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