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Simmons v. Pszczolkowski

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

May 23, 2018

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



         On this 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.

         Pursuant 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.


         After a 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.

         Applicable Law

         When a 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).

         Habeas 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.

         A state 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.


         “In 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).

         The 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.

         The 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 ...

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