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Prophet v. Ballard

United States District Court, N.D. West Virginia

March 28, 2018

DAVID BALLARD, Warden, Respondent.



         Pending for review is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by the pro se petitioner, Antonio Prophet (“Prophet”)(Dkt. No. 13), together with a motion to dismiss filed by the respondent, David Ballard (“Ballard”) (Dkt. No. 53). Also pending is the Report and Recommendation (“R&R”) of the Honorable Michael J. Aloi, United States Magistrate Judge, recommending that the Court grant Ballard's motion and dismiss Prophet's petition with prejudice (Dkt. No. 68). The question presented in Ballard's motion is whether Prophet has exhausted certain claims in his petition, and, if he has not, whether the Court should dismiss the petition.[1]

         For the reasons that follow, the Court ADOPTS in PART the R&R (Dkt. No. 68), DENIES AS MOOT the respondent's motion to dismiss the petition (Dkt. No. 53), and REMANDS the case to the United States Magistrate Judge for further proceedings consistent with this opinion (Dkt. No. 43).

         I. BACKGROUND

         A. Criminal Trial and Direct Appeal

         On July 20, 2012, a jury in the Circuit Court of Berkeley County, West Virginia (“Circuit Court”) convicted Prophet of two counts of first-degree murder and one count of first-degree arson (Dkt. Nos. 52-15 at 14; 52-10). On September 10, 2012, the Circuit Court denied Prophet's post-trial motions and sentenced him to consecutive terms of life without the possibility of parole for each murder conviction, and twenty (20) years of imprisonment for the arson conviction (Dkt. No. 52-12). Prophet timely appealed his convictions to the Supreme Court of Appeals of West Virginia (“Supreme Court of Appeals”) (Dkt. No. 52-14), alleging seven (7) assignments of error: 1) insufficient evidence; 2) the prosecutor's use on cross-examination of Prophet's self-authored novel; 3) the prosecutor's comments on Prophet's post-arrest silence; 4) the Circuit Court's rejection of Prophet's proferred jury instruction; 5) the State's presentation of allegedly perjured testimony; 6) prosecutorial misconduct; and 7) judicial misconduct. On June 5, 2014, the Supreme Court of Appeals affirmed Prophet's convictions, finding all his claims to be without merit (Dkt. No. 52-15). The court's mandate issued on September 2, 2014. Id.

         B. Post-Conviction Proceedings

         1. State Habeas Corpus

         Prophet filed a pro se petition seeking habeas corpus relief on February 2, 2015 (Dkt. No. 52-16). The Circuit Court appointed counsel, who filed an amended petition, asserting thirteen (13) grounds for relief. These included, among others, nine (9) sub-grounds of prosecutorial misconduct, nine (9) sub-grounds of judicial misconduct, eight (8) sub-grounds of ineffective assistance of trial counsel, and two (2) sub-grounds of ineffective assistance of appellate counsel (Dkt. No. 52-18).

         By written order entered on June 24, 2015, the Circuit Court dismissed twenty-two (22) of the grounds or sub-grounds raised in Prophet's amended petition and directed the respondent to answer the remaining claims of ineffective assistance of counsel (Dkt. No. 52-19). Subsequently, the Circuit Court denied habeas relief on those claims, finding that neither Prophet's trial counsel nor his appellate counsel had been ineffective (Dkt. No. 52-21). Prophet timely appealed the Circuit Court's denial of habeas relief (Dkt. No. 52-22).

         On appeal, Prophet alleged eleven (11) assignments of error, including seventeen (17) sub-grounds of ineffective assistance of trial counsel and five (5) sub-grounds of ineffective assistance of appellate counsel (Dkt. No. 52-23). Finding no substantial question of law and no prejudicial error, the Supreme Court of Appeals affirmed the Circuit Court's denial of habeas relief by memorandum decision dated June 21, 2016 (Dkt. No. 52-24). The court's mandate issued on July 22, 2016. Id.

         2. § 2254 Petition

         Prophet filed his § 2254 petition in this Court on August 24, 2016, asserting various grounds for habeas relief (Dkt. No. 1). Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred the Petition to the Honorable Michael J. Aloi, United States Magistrate Judge, for initial review. Thereafter, on August 29, 2016, the magistrate judge struck the filing of the petition for failure to comply with the local rules (Dkt. No. 10). Prophet then re-filed his petition on September 2, 2016 (“Petition”) (Dkt. No. 13).

         The Petition raises thirteen (13) claims for habeas relief, including various sub-grounds of ineffective assistance of trial and appellate counsel. Id. On August 16, 2017, Ballard filed a motion to dismiss the Petition, arguing that Prophet had not exhausted all of his claims in state court before filing his Petition (Dkt. No. 53). Specifically, Ballad argued that Prophet had raised four (4) claims of ineffective assistance of trial counsel and three (3) claims of ineffective assistance of appellate counsel that were not considered in his state post-conviction proceedings (Dkt. No. 55). In response, Prophet abandoned four of the seven disputed claims, and requested that, in the event the Court deemed the other three claims at issue to be unexhausted, he be allowed to abandon those claims as well, and proceed on his remaining claims (Dkt. No. 61).

         In a Report and Recommendation (“R&R”) entered on February 6, 2018, Magistrate Judge Aloi recommended that the Court grant Ballard's motion to dismiss and deny and dismiss the Petition with prejudice (Dkt. No. 68). The R&R concluded that Prophet's claims regarding prejudicial pre-trial and trial publicity, and the Circuit Court's refusal to strike two jurors for cause (Grounds One and Two), were procedurally barred by his failure to raise the claims on direct review. Id. at 59. It further concluded that Prophet had failed to exhaust his state remedies regarding any of the remaining claims challenged in the motion to dismiss. Id. at 90.

         The magistrate judge informed Prophet of his right to file “written objections identifying those portions of the recommendation to which objection is made and the basis for such objections.” Id. at 94. It further warned that the failure to do so may result in waiver of his right to appeal. Id. Prophet timely filed his objections to the R&R on February 20, 2018 (Dkt. No. 71).


         A. Pro Se Pleadings

         The Court must liberally construe pro se pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A court may not, however, construct the plaintiff's legal arguments for him, nor should it “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         B. Report and Recommendation

         When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the prisoner does not object.” Dellacirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those portions of a recommendation to which no objection has been made unless they are “clearly erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Because Prophet objected to the conclusions and recommendations in the R&R, the Court will review his objctions de novo.


         Title 28 U.S.C. § 2254 permits a state prisoner to file an application for a writ of habeas corpus to challenge his conviction “only 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). “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A court may not grant a writ under § 2254 regarding a claim “adjudicated on the merits in State court” unless the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding.

Id. § 2254(d).

         A “state-court decision is contrary to” the Supreme Court's “precedent if the state court arrives at a conclusion opposite to that reached” by the Supreme Court “on a matter of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision “involves an unreasonable application” of such law if it “identifies the correct governing legal principle . . . but unreasonably applies” it to the facts. Id. at 412. Importantly, “unreasonable application” requires that the Court do more than “conclude[] in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Therefore, § 2254 acts to guard only against “extreme malfunctions, ” such as “cases where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011).

         Indeed, “principles of comity and respect for state court judgment preclude federal courts from granting habeas relief to state prisoners for constitutional errors committed in state court absent a showing that the error ‘had a substantial and injurious effect or influence in determining the jury's verdict.'” Richmond v. Polk, 375 F.3d 309, 335 (4th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Factual determinations by the state court are presumed correct, unless the ...

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