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Walton v. Ballard

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

March 30, 2018

TONY J. WALTON, Petitioner,
v.
DAVID BALLARD, Warden Respondent.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE.

         Pending 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”).[1] (ECF No. 68.)

         For the 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 Court.

         I. BACKGROUND

         On 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 Petitioner.”
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 admission.
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 docket.

         II. LEGAL STANDARDS

         A. Review of Magistrate Judge's Findings and Recommendations

         Pursuant 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).

         B. Habeas Corpus Standard of Review

         A 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).

         Section 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 court

(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 the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         Section 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).

         Section 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).

         C. Summary Judgment

         Federal 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 252.

         III. DISCUSSION

         Petitioner 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.

         A. Ineffective Assistance of Counsel

         Petitioner's 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.)

         Petitioner 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).

         If the 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.”).

         In 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.

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