United States District Court, N.D. West Virginia, Martinsburg
MARTINSBURG TEX B. SIMMONS, Petitioner,
KAREN PSZCZOLKOWSKI, Warden, Northern Correctional Facility, and PATRICK MORRISEY, Attorney General for the State of West Virginia, Respondents.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE.
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James E. Seibert [Doc. 22]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Seibert for submission of a proposed report
and a recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on April 2, 2018, wherein he
recommends this Court dismiss the petitioner's §
2254 petition with prejudice.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, 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).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Seibert's R&R were due within fourteen (14) days of
receipt, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). Petitioner timely filed his Objections
[Doc. 23] on April 16, 2018. Accordingly, this Court will
review the portions of the R&R to which the petitioner
objects under a de novo standard of review. The
remainder of the R&R will be reviewed for clear error.
two-day trial in November of 2008, the petitioner, Tex
Simmons, was convicted on two counts of the Indictment: Count
I - Sexual Assault in the First Degree, and Count 2 - Sexual
Abuse by a Custodian. The conduct which lead to the guilty
verdict included forcing his four year-old step daughter to
perform oral sex on him. Petitioner appealed his conviction
to the West Virginia Supreme Court of Appeals, which affirmed
the same on February 11, 2011. On March 12, 2013, petitioner
filed a petition for habeas corpus in Morgan County Circuit
Court. That petition was denied, as was the motion for
reconsideration. On December 22, 2014, petitioner filed an
appeal with the Supreme Court of Appeals, which the Court
denied on October 8, 2015. The Petitioner now brings the
instant federal petition pursuant to 28 U.S.C. § 2254.
petitioner challenges the factual determination made by a
state court, “federal habeas relief is available only
if the state court's decision to deny post-conviction
relief was ‘based on an unreasonable determination of
the facts.'” 28 U.S.C. § 2254(d)(2). “In
reviewing a state court's ruling on post-conviction
relief, we are mindful that ‘a determination on a
factual issue made by a State court shall be presumed
correct, ' and the burden is on the petitioner to rebut
this presumption ‘by clear and convincing
evidence.'” Tucker v. Ozmint, 350 F.3d
433, 439 (4th Cir. 2003).
corpus relief is not warranted, however, unless the
constitutional trial error had a “substantial and
injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993); Richmond v. Polk, 375 F.3d 309 (4th Cir.
2004). “Under this standard, habeas petitioners may
obtain plenary review of their constitutional claims, but
they are not entitled to habeas relief based on trial error
unless they can establish that it resulted in ‘actual
prejudice.'” Brecht, supra.
court decision “involves an unreasonable application of
 clearly established Federal law, as determined by the
Supreme Court, ” 28 U.S.C. § 2254(d)(1), if the
state court decision “identifies the correct governing
legal principle from the Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case.” Williams v. Taylor, 529
U.S. 362, 412 (2000). An objectively “unreasonable
application of federal law is different from an incorrect or
erroneous application of federal law.” Id.
Thus, “a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable” for
habeas relief to be granted. Id. at 411.
a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment
of a State court, a determination of a factual issue made by
a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
plain language of the statute provides that a petitioner may
rebut the presumption of correctness of the state court's
factual findings. One way this may arguably be accomplished
is by demonstrating that the state proceedings were
procedurally flawed. However, “[t]he question is not
whether the defendant would more likely than not have
received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.”
Kyles v. Whitley, 514 U.S. 419, 435 (1995). The
Court emphasized that this is not a sufficiency issue, but
rather an issue of whether all of the “favorable
evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the
verdict.” Id. at 435. As the
Report and Recommendation sets forth in detail, the record
reveals that Simmons cannot meet this standard.
petitioner alleges three grounds for relief in his petition:
(1) that the brain injury his trial counsel suffered caused
counsel to provide ineffective assistance in violation of his
Sixth Amendment rights; (2) that cumulative errors
constituted violations of his Sixth, Eighth, and Fourteenth
Amendment rights and rendered his sentence void; and (3) that
his Fourteenth Amendment due process rights were violated
when the Circuit Court failed ...