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Swager v. Terry

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

March 20, 2018

DANNY R. SWAGER, Petitioner,
v.
RALPH TERRY, Respondent.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE

         Pending before the Court are Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as Unexhausted, (ECF No. 18), and Petitioner's Motion for Stay and Abeyance. (ECF No. 29.) By standing order entered on July 22, 2015, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation for disposition (“PF&R”). (ECF No. 3.) Judge Tinsley entered his PF&R on January 5, 2018, recommending that Respondent's motion to dismiss and Petitioner's motion for stay and abeyance be denied and that the case be referred again to Judge Tinsley for further proceedings concerning Grounds One through Three, Five, and Six of Petitioner's habeas petition. (ECF No. 34 at 16.) Judge Tinsley also recommended in the alternative, should the Court find that Ground Four of the habeas petition states a cognizable claim, the Court stay Petitioner's habeas petition. (Id. at 16- 18.) Petitioner timely filed Objections to the PF&R in which he requested that the Court adopt the alternative recommendation. (ECF No. 36.) Respondent timely filed a response to the PF&R also requesting that the Court choose the alternative recommendation. (ECF No. 35.)

         For the reasons discussed herein, the Court SUSTAINS the Objections, (ECF No. 36), and ADOPTS the PF&R insofar as it consistent with this memorandum opinion and order. (ECF No. 34.) The Court further DENIES Respondent's motion to dismiss, (ECF No. 18), and GRANTS Petitioner's motion to stay.

         I. BACKGROUND

         Petitioner was convicted in August of 2000 in Nicholas County, West Virginia, of sexual assault in the first degree; twelve counts of sexual abuse in the first degree; five counts of sexual abuse by a parent, guardian, or custodian, and nine counts of sexual assault in the second degree. See State v. Swager, No. 00-F-17 (Nicholas Cty. Cir. Ct. 2000). Since his conviction, Petitioner has filed a direct appeal in the Supreme Court of Appeals of West Virginia, a pro se petition for a Writ of Habeas Corpus in the Circuit Court of Nicholas County, a second Petition for appeal in the Supreme Court of Appeals of West Virginia, and the instant 28 U.S.C. § 2254 Federal Writ of Habeas Corpus (“habeas petition”). (See ECF No. 34 at 2-13.) The PF&R sets forth a comprehensive summary of the background of Petitioner's case. Petitioner, in his Objections, concedes the accuracy of this history. (See ECF No. 36 at 2.) As such, the Court adopts the procedural facts as laid out in the PF&R and finds that it is unnecessary to reiterate them for this opinion. The Court will focus on the instant habeas petition (“habeas petition”).

         Petitioner's habeas petition contained the following six grounds for relief:

1. Mr. Swager was denied due process of law to a fair trial and verdict under the Fifth and Fourteenth Amendments of the United States Constitution when the trial court on its sua sponte motion, and over Defense Counsel's objection, it interrupted the jury in the middle of their deliberation, and gave them a “premature & modified” “Allen Charge” instruction containing impermissible language of “suggestions & threats” which coerced them into reaching twenty-seven verdicts within a matter of “minutes v. hours” following the court's additional instruction.
2. The trial court erred in ordering that the trial defendant could not confront his accuser on “proven false allegations” during the course of trial and before his jury in violation of his guaranteed right under the Sixth and Fourteenth Amendments of the United States Constitution and West Virginia Constitution Article III, § 14 and its Rape Shield Statute.
3. Mr. Swager in his pretrial, trial, and plea bargain proceedings was denied his guaranteed right to effective assistance of trial defense counsel under the Sixth and Fourteenth Amendments of the United States Constitution and due to counsel's deficient performances, rejected a plea bargain and received an unfair trial.
4. The trial court erred in not sustaining the defense objection over the prosecutor's improper statements before the jury and during the cross-examination and testimony of the defendant's law enforcement expert witness who worked as a private investigator and as an investigator for the Federal agency of the FBI.
5. The trial court unconstitutionally punished Swager for exercising his constitutional right to a jury trial all because Swager would not accept a plea admitting guilt to the participation of the alleged acts against him in the plea offer.
6. The trial court committed “plain error” violating the petitioner's Fifth, Sixth, and Fourteenth Constitutional Amendment rights by “forcing” petitioner to testify against his desire to, before he could confront his accuser on issues for her motive to lie and after testifying was denied by the court to confront and examine his accuser after petitioner testified.

(ECF No. 2 at 7-32.)

         Respondent filed a motion to dismiss the petition. (ECF No. 18.) In his motion, Respondent argues that Petitioner did not fully exhaust Ground Four of his petition as required by 28 U.S.C. § 2254. (See ECF No. 20 at 23-24.) Respondent, however, does not argue that the other grounds in the petition are unexhausted. Therefore, Judge Tinsley ...


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