United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING-IN-PART REPORT
AND RECOMMENDATION [DKT. NO. 68], DENYING AS MOOT
RESPONDENT'S MOTION TO DISMISS [DKT. NO. 53] AND
REMANDING THE CASE
M. KEELEY UNITED STATES DISTRICT JUDGE
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
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).
Criminal Trial and Direct Appeal
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,
State Habeas Corpus
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).
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).
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.
§ 2254 Petition
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).
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).
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.
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).
STANDARDS OF REVIEW
Pro Se Pleadings
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).
Report and Recommendation
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.
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;
(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).
“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).
“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 ...