United States District Court, S.D. West Virginia, Charleston Division
TONY J. WALTON, Petitioner,
DAVID BALLARD, Warden Respondent.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
before the Court are Tony J. Walton's
(“Petitioner”) petition pursuant to 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody (“§ 2254 Petition”), (ECF No. 1),
and Respondent's Motion for Summary Judgment, (ECF No.
56). On March 24, 2017, this action was re-referred to United
States Magistrate Judge Cheryl A. Eifert for submission of
proposed findings and recommendations for disposition
(“PF&R”). (ECF No. 32.) On November 20, 2017,
Magistrate Judge Eifert filed her PF&R, (ECF No. 64),
recommending that this Court grant the Motion for Summary
Judgment, and deny and dismiss the § 2254 Petition.
Objections to the PF&R were due by February 5, 2018, and
Petitioner timely filed objections on December 14, 2017
(“Objections”). (ECF No. 68.)
reasons discussed herein, the Court
OVERRULES the Objections,
ADOPTS the PF&R, GRANTS
the Motion for Summary Judgment, DENIES
Petitioner's Petition for a Writ of Habeas Corpus, and
DISMISSES this case from the docket of the
December 11, 2009, Petitioner was found guilty of one count
of first-degree robbery and one count of assault during the
commission of a felony after a jury trial in the Circuit
Court of Fayette County, West Virginia. (ECF No. 13-1 at
384.) On January 26, 2010, Petitioner was sentenced to 50
years' imprisonment for the robbery and 2 to 10
years' imprisonment for the assault. (ECF No. 13-2 at
24.) The complete factual and procedural history of
Petitioner's direct appeal and habeas proceeding in state
court, as well as a review of Petitioner's claims in his
federal habeas petition, are set forth in detail in the
PF&R and need not be repeated here. Petitioner, in his
Objections, concedes the accuracy of this history.
(See ECF No. 68 at 1.) As such, the Court adopts the
factual and procedural history as set forth in the PF&R.
The Court will provide a discussion of any relevant facts
from Petitioner's original criminal case as necessary
throughout this opinion to resolve Petitioner's
objections. The § 2254 Petition claims the following
grounds for relief:
1. Actual Innocence - “There was overwhelming evidence
to prove that Petitioner was innocent of the robbery charges
against him that were not used in the defense of Petitioner.
. . . [I]t is crystal clear that if the evidence was used
properly in the defense of Petitioner, it is more likely than
not, that no reasonable juror would have convicted
2. Ineffective Assistance of Counsel - Defense Counsel's
inexperience and the actions taken or lack thereof by counsel
resulted in ineffective assistance of counsel, violating
Petitioner's rights under the Sixth Amendments.
3. Denial of Fair and Impartial Jury - Defense Counsel's
failure to make objections during voir dire and connections
between jurors and the prosecution and interested parties
denied Petitioner of his constitutional right to a fair and
impartial jury violating the Fifth and Fourteenth Amendments.
4. Use of Lineup Photo - It was a violation of
Defendant's rights and the Fifth and Fourteenth
Amendments when the State used the photo lineup to identify
Petitioner, as there was no foundation for the admission of
the photo. Defense Counsel also failed to object to the
5. Improper Jury Instruction - “An erroneous
instruction given by the trial judge [regarding intimidation
and retaliation against jurors and witnesses] deprive[d]
petitioner of his federal constitution, a right to a fair
trial . . . .” 6. Denial of the Right to a Jury of
One's Peers - “. . . [T]here was no people of color
on the panel to choose from . . . . The town . . . where
petitioner went to trial is well known to be a racist town .
. . .” 7. Ineffective Assistance of Appeal Counsel -
“Appeal counsel . . . did not consult him once while
preparing petitioner appeal. There were errors by trial court
that needed discussed.”
(ECF No. 1-1.) The PF&R thoroughly analyzes each of
Respondent's claims as argued in the motion for summary
judgment, and it recommends that this Court grant
Respondent's Motion for Summary Judgment, (ECF No. 56),
deny Petitioner's Petition for Writ of Habeas Corpus,
(ECF No. 1), and dismiss this matter from the Court's
Review of Magistrate Judge's Findings and
to Federal Rule of Civil Procedure 72(b)(3), the Court must
determine de novo any part of a magistrate
judge's disposition to which a proper objection has been
made. The Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file timely objections constitutes a waiver of
de novo review and the petitioner's right to
appeal this Court's order. 28 U.S.C. § 636(b)(1);
see also Snyder v. Ridenour, 889 F.2d 1363, 1366
(4th Cir. 1989); United States v. Schronce, 727 F.2d
91, 94 (4th Cir. 1984). In addition, this Court need not
conduct a de novo review when a party “makes
general and conclusory objections that do not direct the
Court to a specific error in the magistrate's proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Habeas Corpus Standard of Review
federal court may grant habeas relief for a state prisoner
“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). “Therefore,
when a petitioner's claim rests solely upon an
interpretation of state case law and statutes, it is not
cognizable on federal habeas review.” Weeks v.
Angelone, 176 F.3d 249, 262 (4th Cir. 1999),
aff'd, 528 U.S. 225 (2000).
2254(d), as modified by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), provides for a
deferential standard of review to be applied to any claim
that was “adjudicated on the merits” in state
court proceedings. In such a case, a federal court may grant
habeas relief only if the adjudication of the claim in state
(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 the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
2254(d)(1) describes the standard of review to be applied to
claims challenging how the state courts applied federal law.
“A federal habeas court may issue the writ under the
‘contrary to' clause if the state court applies a
rule different from the governing law set forth in [Supreme
Court] cases, or if it decides a case differently than we
have done on a set of materially indistinguishable
facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). “The court may grant relief under the
‘unreasonable application' clause if the state
court correctly identifies the governing legal principle from
our decisions but unreasonably applies it to the facts of the
particular case.” Id. The latter inquiry
focuses on whether the state court's application of
clearly established federal law was “unreasonable,
” as distinguished from whether it was
“correct.” See Renico v. Lett, 559 U.S.
766, 773 (2010); Bell, 535 U.S. at 694; Williams
v. Taylor, 529 U.S. 362, 410 (2000).
2254(d)(2) describes the standard to be applied to claims
challenging how the state courts determined the facts.
“[A] determination of a factual issue made by a State
court [is] presumed to be correct, ” and the petitioner
has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). “The phrase
‘adjudication on the merits' in section 2254(d)
excludes only claims that were not raised in state court, and
not claims that were decided in state court, albeit in a
summary fashion.” Thomas v. Taylor, 170 F.3d
466, 475 (4th Cir. 1999); see also Harrington v.
Richter, 562 U.S. 86, 98 (2011) (recognizing that §
2254(d) applies even if the state court issued a summary
decision unaccompanied by an explanation). The state court
determination will be upheld so long as “fairminded
jurists could disagree” on its correctness.
Yarbrough v. Alvarado, 541 U.S. 652, 664 (2004).
Rule of Civil Procedure 56 governs motions for summary
judgment. That rule provides, in relevant part, that summary
judgment should be granted if “there is no genuine
issue as to any material fact.” Summary judgment is
inappropriate, however, if there exist factual issues that
reasonably may be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). “Facts are ‘material' when they might
affect the outcome of the case, and a ‘genuine
issue' exists when the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.”
News & Observer Publ. Co. v. Raleigh-Durham Airport
Auth., 597 F.3d 570, 576 (4th Cir. 2010). When
construing such factual issues, the Court must view the
evidence “in the light most favorable to the [party
opposing summary judgment].” Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970). “When faced
with cross-motions for summary judgment, the court must
review each motion separately on its own merits to determine
whether either of the parties deserves judgment as a matter
of law.” Rossignol v. Voorhaar, 316 F.3d 516,
523 (4th Cir. 2003) (internal quotation marks omitted)
(citation omitted). The court will consider each motion
individually, “tak[ing] care to resolve all factual
disputes and any competing rational inferences in the light
most favorable to the party opposing that motion.”
Id. (internal quotation marks omitted) (citation
omitted). The nonmoving party may not rest on the pleadings
alone and must show that specific material facts exist by
offering more than a mere “scintilla of evidence”
in support of his position. Anderson, 477 U.S. at
lodges six specific objections to the PF&R and asserts
that Magistrate Judge Eifert failed to address two
contentions raised in Respondent's Motion for Summary
Judgment. The Court ADOPTS and
AFFIRMS the PF&R, without de
novo review, in regard to all of the claims which
Petitioner has failed to object to. In regard to the claims
that Petitioner has lodged his objections, the Court will now
conduct a de novo review.
Ineffective Assistance of Counsel
specific objections to the PF&R concern the alleged
ineffective assistance of counsel (“IAC”) by his
Defense Counsel at the trial level. These objections relate
to the PF&R's conclusion that Respondent is entitled
to summary judgment as to Ground 2 of the § 2254
Petition. (See ECF No. 1-1 at 14-24.)
must overcome two layers of deference for the Court to
sustain his IAC objections. First, the Supreme Court's
pronouncement in Strickland accords to his counsel a
“highly deferential” level of judicial scrutiny.
Strickland v. Washington, 466 U.S. 668, 689 (1984).
Courts “must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance . . . .”
Id. The burden falls to Petitioner to demonstrate
otherwise. See Id. at 690 (“A convicted
defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.”). If counsel made a “strategic
choice” after “thorough investigation of law and
facts, ” the act is “virtually
unchallengeable.” Id. Acts or omissions not
determined to be strategic-either because they were not
adequately informed or they were not conscious decisions at
all-are still analyzed by an objective reasonableness
standard. See Roe v. Flores-Ortega, 528 U.S. 470,
481 (2000); Kimmelman v. Morrison, 477 U.S. 365,
375, 386 (1986).
reviewing court determines under this deferential standard
that counsel's action fell outside the accepted range of
professionally reasonable conduct, the challenger must also
show that he was prejudiced by the errors-that “there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome.
Id. In addressing IAC claims, courts may address
either issue-counsel's performance or prejudice from the
alleged error-first, since a finding adverse to the
petitioner on either issue is dispositive. See Id.
at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components
of the inquiry if the defendant makes an insufficient showing
on one. . . . If it is easier to dispose of [the] claim on
the ground of lack of sufficient prejudice, . . . that course
should be followed.”).
addition to this deferential standard, § 2254
petitioners making IAC claims must show that the reviewing
state court applied Strickland unreasonably. See
Elmore v. Ozmint, 661 F.3d 783, 856-66 (4th Cir. 2011).
The Supreme Court has noted that “[t]he standards
created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review
is doubly so.” Harrington, 562 U.S. at 105
(internal quotation marks omitted) (citations omitted)
(noting that “[s]urmounting Strickland's
high bar is never an easy task” and that
“[e]stablishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult”). “When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.”
Id. Ultimately, “a state prisoner must show
that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Id. at 103.