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Mullins v. Hill

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

January 2, 2019

GARY WAYNE MULLINS, Petitioner,
v.
SPENCER HILL, Acting Warden, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         Pending before the Court is Respondent's Motion for Summary Judgment (Document No. 21), filed on March 8, 2018. Having thoroughly examined the record in this case, the undersigned respectfully recommends that the District Court grant Respondent's Motion for Summary Judgment.

         PROCEDURAL HISTORY

         A. Criminal Action No. 11-F-755:

         In the September 2011 term of court, the Grand Jury of Kanawha County, West Virginia, returned an Indictment against Petitioner charging him with one count of kidnapping in violation of W.Va. Code § 61-2-14a (Count One); one count of second-degree robbery in violation of W.Va. Code 61-2-12(b) (Count Two); and one count of obtaining money through fraudulent pretenses in violation of W.Va. Code 61-3-24d (Count Three). State v. Mullins, No. 11-F-755 (Cir. Ct. Kanawha Co. November 29, 2012); (Document No. 20-1.) John Sullivan, Kanawha County Assistant Public Defender, was appointed to represent Petitioner. (Document No. 20-7 and 20-13.) Following a two-day jury trial beginning on February 6, 2012, Petitioner was convicted of kidnapping (Count One) and acquitted of second-degree robbery (Count Two) and obtaining money through fraudulent pretenses (Count Three). (Document Nos. 20-2 and 20-3.) Following repeated requests by Petitioner for the appointment of new counsel, the Circuit Court relieved Mr. Sullivan as counsel and appointed Matthew A. Victor as counsel on June 6, 2012. (Document No. 20-7.) On July 5, 2012, Petitioner, by counsel, Matthew Victor, filed a Motion for New Trial and/or Judgment of Acquittal arguing that the trial court committed reversible error by following: (1) Denying Petitioner a motion for a change in venue; (2) Denying Petitioner's motion for an instruction defining second-degree robbery as a lesser included offense of kidnapping; (3) Admitting hearsay evidence of the alleged victim's prior consistent statements before the Petitioner's cross-examination credibility challenge; (4) Advising the jurors of the Petitioner's incarceration “due to matters unrelated to this case;” and (5) Excluding the Petitioner from the critical stage of the proceedings during the jury deliberations.” (Document No. 20-4.) On August 2, 2012, the Circuit Court sentenced Petitioner to twenty-years in the state penitentiary.[1](Document Nos. 20-7 and 20-8.) On August 3, 2012, Mr. Victor supplemented Petitioner's Motion for New Trial and/or Judgment of Acquittal to include an argument that the trial court erred by “failing to engage in a meaningful colloquy with the [Petitioner] concerning his right to testify in his own defense.” (Document No. 20-5.) On October 29, 2012, Mr. Victor filed a Renewed Motion for New Trial realleging that the trial court committed reversible error by: (1) Denying an instruction defining second-degree robbery as a lesser included offense of kidnapping; (2) Admitting hearsay evidence of the alleged victim's prior consistent statements before the Petitioner's cross examination credibility challenge; (3) Advising the jurors of the Petitioner's incarceration due to the matters unrelated to this case; (4) Excluding the Petitioner from the critical stage of the proceedings during the jury deliberation; and (5) Failing to engage in a meaningful colloquy with the Petitioner concerning his right to testify in his own defense. (Document No. 20-6.) By Order entered November 29, 2012, the Circuit Court denied Petitioner's Motions for New Trial and/or Judgment of Acquittal. (Document No. 20-7.)

         On March 25, 2013, Petitioner, by counsel, Mr. Victor, filed a Petition for Appeal with the Supreme Court of Appeals of West Virginia [“WVSCA”]. (Document No. 20-9.) In his appeal, Petitioner raised the following assignments of error:

1. Under plain error analysis, the trial court erred by admitting hearsay evidence of the alleged victim's prior consistent non-verbal statements and the interviewing law enforcement officer's belief in the victim's statements before the Petitioner's cross-examination credibility challenge.
2. Under plain error analysis, the trial court committed an error of constitutional dimensions by excluding the Petitioner from the critical stage of the proceedings, i.e., the communication between the trial court and the jury during jury deliberation.
3. There was insufficient evidence to convict the Petitioner of the charge of kidnapping.
4. Under plain error analysis, the Petitioner was denied due process of law when the State presented false and misleading evidence to the grand jury.
5. Under plain error analysis, the trial court committed reversible error by allowing prosecution's repeated description of the Petitioner as “a con man” or “a con man who preys on the elderly” to be presented to the jury.
6. The cumulative error in the trial court proceedings deprived the Petitioner of his due process rights to a fair trial.

(Id.) The State filed its Response Brief on June 7, 2013. (Document No. 20-10.) By Memorandum Decision filed on October 18, 2013, the WVSCA affirmed Petitioner's conviction. (Document No. 4 20-11.)

         B. State Habeas Petition:

         On November 19, 2013, Petitioner, acting pro se, filed his Petition for Writ of Habeas Corpus and Memorandum in Support in the Circuit Court of Kanawha County. Mullins v. Rubenstein, No. 13-P-625 (Cir. Ct. Kanawha Co.); (Document No. 20-12.) In his Petition, Petitioner raised the following grounds for habeas relief:

1. Denial of effective assistance of counsel based upon counsel's failure to make objections to testimony or questions asked by prosecution.
2. Denial of effective assistance of counsel based upon counsel's failure to object or raise awareness to the fact that an instruct defining second degree robbery as a lesser included offense of kidnapping.
3. Denial of effective assistance of counsel based upon counsel allowed the admission of hearsay evidence of the alleged victim's prior consistent statements before the Petitioner's cross examination credibility challenge.
4. Denial of effective assistance of counsel based upon counsel's failure to object or make awareness to the fact that Petitioner was being excluded during a vital stage of the proceedings during jury deliberation.
5. Denial of effective assistance of counsel based upon counsel's failure to object to the presentation of false and misleading evidence to the grand jury.
6. Denial of effective assistance of counsel based upon counsel's act of allowing, without objection, prejudicial statements by the prosecution concerning the alleged pattern of the Petitioner's prior conduct.
7. Denial of effective assistance of counsel based upon counsel's failure to present witnesses with valuable testimony as to his defense.

(Id.) The Circuit Court appointed counsel to represent Petitioner in his habeas proceedings. (Id.)

         On September 25, 2014, Petitioner, by counsel, Mr. Victor, filed an Amended Petition asserting the following grounds:

1. Petitioner received ineffective assistance of counsel in the underlying criminal case.
2. The trial court erred by admitting hearsay evidence of the alleged victim's prior consistent non-verbal statements and the interviewing law enforcement officer's belief in the victim's statements before the Petitioners' cross-examination credibility challenge.
3. The trial court committed an error of constitutional dimensions by excluding the Petitioner from the critical stage of the proceedings, i.e., the communication between the trial court and the jury during jury deliberation.
4. There was insufficient evidence to convict the Petitioner of the charge of kidnapping.
5. The Petitioner was denied due process of law when the State presented false and misleading evidence to the grand jury.
6. The trial court committed reversible error by allowing prosecutions' repeated description of the Petitioner as “a con man” or “a con man who preys on the elderly” to be presented to the jury.
7. The cumulative error in the trial court proceedings deprived the Petitioner of his due process rights to a fair trial.

(Document No. 20-13.) The Circuit Court conducted an omnibus hearing on March 4, 2015. (Document No. 20-23.) The Circuit Court heard testimony from the following: (1) Courtney Hill, a bank employee; (2) Tamera Westfall, Petitioner's sister; (3) John Sullivan, Petitioner's trial counsel; and (4) Petitioner. (Id.) By Order entered on December 16, 2015, the Circuit Court denied Petitioner's Amended Habeas Petition. (Document No. 20-14.)

         Petitioner, by counsel, Mr. Victor, filed his appeal concerning the Circuit Court's decision denying his habeas Petition. (Document No. 20-15.) On March 8, 2016, Petitioner filed his brief raising the following grounds:

1. Petitioner received ineffective assistance of counsel in the underlying criminal case.
2. The trial court erred in admitting hearsay evidence of the alleged victim's prior consistent non-verbal statements and the interviewing law enforcement officer's belief in the victim's statements before the Petitioner's cross-examination credibility challenge.
3. The trial court committed an error of constitutional dimensions by excluding the Petitioner from the critical stage of the proceedings, i.e., the communication between the ...

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