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Gray v. Ballard

United States District Court, N.D. West Virginia

January 17, 2019

ROSSI ANTHONY GRAY, JR., Petitioner,
v.
DAVID BALLARD, WARDEN, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         On March 6, 2017, pro se Petitioner, Rossi Anthony Gray, Jr., filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 raising four grounds for relief. ECF No. 1. On June 2, 2017, the Respondent filed his Response together with a Motion to Dismiss as Unexhausted and Procedurally Barred with a Memorandum in Support and exhibits. ECF Nos. 16-18. On June 5, 2017, a Roseboro Notice was issued. ECF No. 19. On June 26, 2017, Petitioner filed his Response. ECF No. 22. On July 5, 2017, Petitioner refiled his response with a completed certificate of service. ECF No. 23. On July 19, 2017, Respondent filed a Reply. ECF No. 25.

         On February 8, 2018, former United States Magistrate Judge James E. Seibert issued a Report and Recommendation in which he concluded that only one of the Petitioner's claims was exhausted, and the others were procedurally defaulted. Accordingly, he determined that the case was subject to dismissal as a mixed petition. Therefore, he recommended that the Respondent's Motion for Summary Judgment be granted, and the petition be dismissed with prejudice unless the Petitioner withdrew his defaulted claims and proceeded on his one exhausted claim. ECF No. 34.

         On February 27, 2018, the Petitioner filed objections to the Report and Recommendation. At the time he filed his objections, he had an appeal pending from the decision by the Circuit Court of Ohio County denying his Motion to Correct an Illegal Sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure.[1] The Petitioner maintained that the claims deemed unexhausted by Magistrate Judge Seibert were pending in that appeal. Accordingly, the Petitioner requested that this Court order a stay and abeyance until the Supreme Court of Appeals of West Virginia (“SCAWV”) issued its ruling. However, the Petitioner further noted his agreement to withdraw his procedurally defaulted claims in the event the Court determined that the pending appeal did not require the Magistrate Judge's findings to be modified or amended. Id. at p. 33. On March 14, 2018, the Court found that it would be futile to grant a stay. Therefore, the Court ordered that the Respondent's Motion to Dismiss as Unexhausted and Procedurally Barred be granted in part, and the unexhausted claims in the § 2254 petition were dismissed with prejudice. The matter was recommitted with instruction to issue a new R&R regarding the Petitioner's exhausted claim of double jeopardy. ECF No. 34.

         On May 2, 2018, the Respondent was ordered to file a supplemental answer. ECF No. 38. On June 22, 2018, the Respondent filed a Supplemental Response [ECF No. 48] and a Motion for Summary Judgment. ECF No. 49. A Roseboro Notice was issued on June 25, 2018 [ECF No. 51], and on July 23, 2018, the Petitioner filed his response. ECF No. 54. Also pending is the Petitioner's Motion to have this Court declare W.Va. Code § 61-8-13 (1923) void ab initio [ECF No. 53], as well as his Motion for Judicial Notice. ECF No. 55.

         II. Relevant Facts and Procedural History

         A. Indictment, Trial and Direct Appeal

         On January 10, 2005, the Ohio Grand Jury indicted the Petitioner with one charge of “Sexual Assault in the Second Degree” for his sexual intrusion of the victim with the fingers on his left hand in violation of West Virginia Code § 61-8B-4(a)(1); one charge of “Sexual Assault in the Second Degree” for his sexual intrusion of the victim with the fingers of his right hand in violation of West Virginia Code § 61-8B-4(a)(1) (Count II); one charge of “Sexual Abuse in the First Degree” for his sexual contact with the victim with his left hand in violation of West Virginia Code § 61-8B-7(a)(3) (Count III); one charge of “Sexual Abuse in the First Degree” for sexual contact with the victim with his right hand in violation of West Virginia Code § 61-8B-7(a)(3) (Count IV); and one count of “Sexual Abuse in the First Degree” for sexual contact with the victim's breasts in violation of West Virginia Code § 61-8B-7(a)(3) (Count V).[2] ECF No. 16-1.The victim was identified in the indictment as A.M.K., a female who was 15 at the time. Id. at pp. 3-5. Following a jury trial, the Petitioner was convicted on all five counts. ECF No. 16-2.

         Thereafter, the State of West Virginia filed a Recidivist Information alleging that Petitioner was the same individual convicted of three felony offenses, to-wit, sodomy in 1978; unlawful assault in 1982; and driving under the influence of alcohol, third offense in 2001. Id. A sentencing hearing was conducted on January 31, 2006, and on February 13, 2006, the Circuit Court entered an order which found that the three prior felony offenses were all violent offenses. Id. at 4. In addition, the Circuit Court found that the triggering offense giving rise to the Recidivist Information, Count 5 of the Indictment for Sexual Abuse in the First Degree, was also a violent offense. Id. Petitioner was then sentenced as follows:

1. As to Count 1 of ‘Sexual Assault, Second Degree', the Defendant is sentenced to not less than 10 nor more than 25 years in the state penitentiary;
2. As to Count 2 of ‘Sexual Assault, Second Degree', the Defendant is sentenced to not less than 10 nor more than 25 years in the state penitentiary;
3. As to Count 3 of “Sexual Abuse, First Degree', the Defendant is sentenced to not less than 1 nor more than 5 years in the state penitentiary;
4. As to Count 4 of ‘Sexual Abuse, First Degree'', the Defendant is sentenced to not less than 1 nor more than 5 years in the state penitentiary;
5. As to Count Five of ‘Sexual Abuse, First Degree', the triggering offense for the Recidivist Information, the Defendant is sentenced to a life sentence.

ECF No. 16-2 at 4-5. The sentencing order also included a recommendation that Petitioner not receive parole. Id. at 5

         Following a direct appeal and numerous post-conviction proceedings, which are set forth in detail in the R&R entered on February 8, 2018, the Petitioner filed his § 2254 petition.

         III. The Pleadings

         A. The Petition

         The Petition raised four grounds for relief, each with subparts. Although the full substance of the petition is set forth in the previous R&R, the following is a summary of the grounds raised in the petition:

         Ground One: “Petitioner was denied due process of law as secured by the 5th and 14th Amendments to the U.S. Constitution when the [Trial] Court failed to properly instruct the jury on the elements of second degree assault.” ECF No. 1 at 4.

         GROUND TWO: “Petitioner was denied due process of law as secured by the 5th and 14th Amendments to the U.S. Constitution and the 8th Amendment to the U.S. Constitution when the Sentencing Court imposed a habitual life sentence despite the absence of two valid convictions for violent crimes and two sentences to the penitentiary.” ECF No. 1 at 6.

         GROUND THREE: “Petitioner was denied his constitutional right to due process of law as guaranteed by the U.S. Constitution when the State failed to identify two prior violent felony convictions and two felony sentences to the penitentiary as required by WV Code § 61-11-[18](c) and the 8th Amendment to the U.S. Constitution.” ECF No. 1 at 9.

         GROUND FOUR: “Petitioner was denied due process of law as secured by the 5th, 8th and 14th Amendments to the U.S. Constitution and the meaningful assistance of counsel as secured by the 6th Amendment to the U.S. Constitution. ECF No. 1 at 15.

         The only ground which survived the Respondent's original Motion for Summary Judgment, is the portion of Ground One that alleged ...


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