United States District Court, N.D. West Virginia, Martinsburg
TEX B. SIMMONS, Petitioner,
KAREN PSZCZOLKOWSKI, Warden, Northern Correctional Facility, and PATRICK MORRISEY, Attorney General for the State of West Virginia, Respondents.
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural History
Conviction and Sentence
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.
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.
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.
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.
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.
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
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
Tex S. v. Pszczolkowski, 236 W.Va. 245 (2015)
(footnotes omitted); ECF No. 30 at 6.
sole hearing where Petitioner was represented by Mr. Prezioso
was October 1, 2007. ECF No. 14-5.
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.