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Simmons v. Pszczolkowski

United States District Court, N.D. West Virginia, Martinsburg

April 2, 2018

TEX B. SIMMONS, Petitioner,
v.
KAREN PSZCZOLKOWSKI, Warden, Northern Correctional Facility, and PATRICK MORRISEY, Attorney General for the State of West Virginia, Respondents.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On January 6, 2017, Petitioner, by counsel, filed a Petition for a Writ of Habeas Corpus against Respondents Karen Pszczolkowski and Patrick Morrisey, pursuant to 28 U.S.C. § 2254. ECF No. 1. Following the entry of a June 20, 2017 order to show cause entered by Magistrate Judge James E. Seibert, on September 11, 2017, Respondent Morrisey filed a motion to dismiss him as a party. ECF No 13. Also on September 11, 2017, Respondents filed a motion to dismiss the petition as untimely, with 33 exhibits, and a memorandum of law in support thereof. ECF Nos. 14, 14-1 through 14-33, 15. On October 3, 2017, Petitioner filed a response in opposition to the motion to dismiss as untimely, with attached exhibits. ECF Nos. 17, 17-1, 17-2. The matter is pending before this Court for an initial review and Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule of Prisoner Litigation Procedure 2.

         II. Factual and Procedural History

         A. Conviction and Sentence

         On January 2, 2007, in the Circuit Court of Morgan County, West Virginia, Petitioner was indicted in case number 07-F-20 and charged in Count 1 with Sexual Assault in the First Degree, a violation of West Virginia Code § 61-8B-3(a)(2), and in Count 2 with Sexual Abuse by a Custodian, a violation of West Virginia Code § 61-8D-5. ECF No. 14-1. The allegations against Petitioner were that he made his four year old step daughter perform oral sex upon him.

         A two day jury trial began November 18, 2008. By the date of trial the child victim was seven years old and could no longer recall the events. The testimony of the child's mother was that while she was working on the night of April 6, 2006 through the morning of April 7, 2006, Petitioner was taking care of his stepchildren. ECF No. 1-4 at 6. When the child's mother returned the morning of April 7, 2006, her four year old daughter reported that “Tex put his pee pee in my mouth and peed and kept it there until I swallowed.” Id. Later that day, after consultation with her minister, the child's mother took her daughter for a forensic nurse examination. Id. at 7. The nurse testified the child told her, “I was asleep on the couch. Something came out of it and went down my throat. It had a yucky taste. I was still asleep while he was doing that. I remember it. I still have a yucky taste from it. I cried this morning because I still had that taste.” Id. The forensic nurse collected samples from the child's mouth using lip swabs, oral rinse and floss. Id.

         Forensic science and DNA experts from the West Virginia State Police Laboratory testified that various tests were performed on the collected samples. One of the tests was a presumptive test for seminal fluid which was positive for the lip swabs. ECF No. 1-4 at 8 - 9. A confirmatory test for seminal fluid was then performed, which “was also positive allowing me to say that seminal fluid was identified in the lip, lip area swabs.” Id. at 9.

         Petitioner did not testify but called one expert witness in the areas of psychology and professional counseling. The expert was disclosed prior to trial, but the defense expert report was disclosed on the day of trial. The State did not object to the late disclosure. Id. at 10. The defense expert attacked the State's expert witness's opinion that the child was sexually abused and not subject to suggestion. Id. at 12.

         Petitioner was found guilty of both counts of the indictment by the jury on November 19, 2008. ECF No. 14-2. On May 4, 2009, Petitioner was sentenced by the Circuit Court. As to Count 2, the Court imposed an indeterminate sentence of not less than 10 nor more than 20 years in the penitentiary. ECF No. 14-14 at 38:20 - 23. As to Count 1, initially the court imposed a determinate sentence of 50 years, and ordered that the sentences be served consecutively to one another. Id. at 38:23 - 39:4. Immediately the prosecutor indicated she thought the sentence for Count 1 should be an indeterminate rather than a determinate sentence. Id. at 39:11 - 18. The Court then reviewed the statute taking a recess to do so. Id. at 39:23 - 40:5. Upon returning to the record, the Court advised, “We went back and took a look at the applicable statute which would have been applicable in 2007, and we're going to go ahead and resentence again. It is an indeterminate.” Id. at 40:6 - 9. Thereupon the Court sentenced Petitioner for Count 1 to an indeterminate period of not less than 25 years or more than 100 years to be served consecutively to the sentence in Count 2.

         However, none of the participants at sentencing noted that although Petitioner was indicted in 2007, the criminal acts which he was convicted of committing occurred in April 2006. On June 14, 2006, the West Virginia Legislature amended West Virginia Code § 61-8B-3, with an effective date of October 1, 2006, substantially increasing the penalty for the act of sexual assault in the first degree. Accordingly, Petitioner was charged under and should have been sentenced under the 2000 version of the statute, which provided for a penalty of not less than 15 nor more than 35 years imprisonment, not under the amended 2006 version of the statute which provided for a penalty of not less than 25 nor more than 100 years imprisonment.

         Throughout these proceedings Petitioner was represented by the same attorney, Paul E. Lane. ECF Nos. 14-3, 14-4, 14-6 through 14-14. The Supreme Court of Appeals of West Virginia summarized Mr. Lane's representation of Petitioner in its decision issued October 8, 2015:

Prior to trial, Mr. Lane was involved in a motorcycle accident and he suffered a head injury. The West Virginia State Bar suspended his license to practice law and appointed other local attorneys to represent his clients. Christopher Prezioso was appointed to represent the Petitioner. Three months after the accident, upon a showing that he had recovered from his injuries, Mr. Lane's law license was reinstated, and he was retained by the Petitioner to continue with his representation of the Petitioner at the Petitioner's request.

Tex S. v. Pszczolkowski, 236 W.Va. 245 (2015) (footnotes omitted); ECF No. 30 at 6.

         The sole hearing where Petitioner was represented by Mr. Prezioso was October 1, 2007. ECF No. 14-5.

         B. Direct Appeal

         On February 24, 2010, Petitioner by new counsel, James T. Kratovil, filed a petition for appeal with the Supreme Court of Appeals of West Virginia in that court's docket number 35540. ECF No. 14-16. On April 14, 2010, the Supreme Court of Appeals granted the petition for appeal as to assignment of error number 1 only. ECF No. 14-18. That assignment of error concerned the unavailability of the child victim who did not remember the events, and the admission of evidence of the child's prior statements through her mother, the forensic nurse who examined the child and the police officer who investigated the case. ECF No. 14-16 at 8 - 12. The parties filed additional briefs on that issue. ECF Nos. 14-20, 14-21. On February 11, 2011, the Supreme Court of Appeals affirmed Petitioner's conviction, finding that “regardless of whether the lower court's determination that the child was ‘unavailable' was correct, we determine that the complained-of testimony was properly admitted.” ECF No. 14-22 at 4 - 5.

         C. Appeal ...


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