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Plymail v. Mirandy

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

January 24, 2019

CHARLES F. PLYMAIL, Petitioner,
v.
PATRICK A. MIRANDY, 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. 89), filed on March 1, 2018. Having thoroughly examined the record in this case, the undersigned respectfully recommends that the District Court grant Respondent's above Motion.

         PROCEDURAL AND FACTUAL HISTORY

         A. Criminal Action No. 93-F-50:

         On January 7, 1993, the Grand Jury of Cabell County, West Virginia, returned an Indictment against Petitioner charging him with one count of second degree sexual assault of Kathy Young.; one count of burglary of Teresa Salow's home; two counts of first degree sexual assault of Teresa Salow; one count of first degree sexual abuse of Teresa Salow; and one count of maliciously wounding Karen Lucas (Teresa Salow's roommate). State v. Plymail, Criminal Action No. 93-F-50 (Cir. Ct. Cabell Co. August 18, 2013). (Document No. 88-1, p. 3.) On August 4, 1993, the State decided to proceed to trial only on the sexual assault charge involving Karen Young because laboratory results concerning the remaining counts were not yet available. (Id.) Following a two-day jury trial beginning on August 18, 1993, Petitioner was convicted of second-degree sexual assault of Karen Young. (Document No. 88-5.) On August 30, 1993, the State filed a Recidivist Information against Petitioner alleging that Petitioner had at least two prior felony convictions (1989 conviction for third-degree sexual assault; 1984 conviction for armed robbery). (Document No. 88-6.) On September 9, 1993, Petitioner appeared for his arraignment on the recidivist information, but the arraignment was continued at Petitioner's request. (Document No. 88-22, pp. 11 - 12.) Also on September 9, 1993, Petitioner requested that trial counsel be relieved as counsel and he be allowed to proceed pro se.[1] (Id., pp. 30 - 38.) The Circuit Court granted Petitioner's request and appointed stand-by counsel. (Id.) Subsequently, Petitioner filed his Motion to Set Aside Verdict. On December 1, 1993, December 6, 1993, December 20, 1993, and February 14, 1994, the Circuit Court conducted hearings on Petitioner's Motion to Set Aside Verdict. (Document Nos. 88-23, 88-24, 88-25, and 88-26.) On February 14, 1994, the Circuit Court denied Petitioner's Motion to Set Aside Verdict. (Document No. 88-26, pp. 78 - 84.) Also on February 14, 1994, the Circuit Court conducted Petitioner's arraignment on the recidivist information and Petitioner filed a Motion to Dismiss the Recidivist Information arguing that his arraignment was untimely under West Virginia Code §§ 61-11-18 and 61-11-19. (Id., pp. 86 - 108) Following the denial of Petitioner's Motion to Dismiss the Recidivist Information, Petitioner was arraigned and he admitted his two prior felony convictions. (Id., pp. 104 - 108.) The Circuit Court sentenced Petitioner to life in prison, with parole eligibility after serving 15 years. (Id., p. 110 and Document No. 88-9.)

         On March 9, 1994, Petitioner filed a Notice of Appeal. (Document No. 58-78.) On March 10, 1994, the Circuit Court appointed Ms. Nancy Sheets as appellate counsel (Id.) On June 15, 1994, Petitioner filed a pro se Motion to Dismiss Court-Appointed Counsel and a Motion to Extend the Appeal Period. (Id.) By Order entered on December 9, 1994, the Circuit Court relieved Ms. Sheets as counsel, appointed the Public Defender's Office of Cabell County as counsel. (Document No. 58-78 and Document No. 70, pp. 30 - 31.) Assistant Public Defender Neil Bouchillon was assigned to Petitioner's case and Mr. Bouchillon agreed to serve as Petitioners' “editor/advisor.”[2] (Id. and Document No. 84, p. 2.) On June 27, 1995, Mr. Bouchillon filed a Motion to Withdraw as Counsel. (Document No. 58-78) The Circuit Court conducted a hearing on the Motion to Withdraw on July 21, 1995. (Document No. 65, p. 7 and Document No. 84, p. 3.) During the above hearing, Petitioner and Mr. Bouchillon advised the court that they had resolved their differences and Mr. Bouchillon agreed to continue as counsel to act as Petitioner's “editor/advisor” concerning a petition for appeal drafted by Petitioner. (Id.) On February 25, 2008, Petitioner filed a Motion to Dismiss the Public Defender's Office. (Document No. 65, pp. 9, 51 - 52 and Document No. 58-78.) On February 26, 2008, the Circuit Court appointed Mr. Steven M. Bragg as counsel. (Document No. 58-78.) On January 28, 2013, Mr. Bragg filed a Motion to Substitute Counsel (Document No. 58-22.) By Order entered on March 28, 2013, the Circuit Court granted Mr. Bragg's Motion and appointed Mr. Nicolas Mayo as appellate counsel. (Id.) On September 19, 2013, Mr. Mayo filed a proposed resentencing order and a Motion to Withdraw as Counsel. (Document No. 58-78.) The Circuit Court entered the Resentencing Order on September 20, 2013. (Document No. 58-79, pp. 30 - 31.) By Order entered on September 24, 2013, the Circuit Court granted Mr. Mayo's Motion to Withdraw as Counsel and appointed Jason Goad as counsel. (Document No. 58-78.) On April 2, 2014, Mr. Goad filed with the WVSCA a Motion to Withdraw as Counsel (Document No. 58-45.) By Order entered on April 17, 2014, the WVSCA granted Mr. Goad's Motion and remanded the case to the Circuit Court for the sole purpose of appointing new counsel. (Document No. 58-46 and 58-47.) The WVSCA further stayed the appeal pending the appointment of new counsel by the Circuit Court. (Document No. 58-46.)

         By Order entered on May 29, 2014, the Circuit Court appointed Mr. Ray Nolan as appellate counsel. (Document No. 58-49.) By “Amended Order of Appointment” entered on June 3, 2014, the Circuit Court appointed Mr. Steve Cook[3] as appellate counsel. (Document No. 58-50.) On November 18, 2014, Mr. Cook filed Petitioner's Appellate Brief. (Document No. 58-60.) Petitioner asserted the following assignments of error:

1. Whether the extraordinary delay in Appellant/Petitioner's right to an appeal should afford Appellant/Petitioner immediate relief in the form of release from prison coupled with an injunction to prevent further prosecution?
2. Whether the trial court committed plain error and/or reversible error by the trial court's comments to the jury during the deliberation phase and the trial courts limitations on the time frame for completing the trial and jury deliberations and whether the trial court committed plain error and/or reversible error by coercing the jurors into agreeing upon the verdict?
3. Whether the trial court lacked jurisdiction to use the recidivist statute to enhance Petitioner's conviction to a life sentence, because said enhancement was not done in the same term of Court as the conviction as required by statute?
4. Whether the Petitioner was misled into waiving his right to testify?
5. Whether the trial court erred in permitting the prosecutor to use inflammatory language in closing argument, state facts not in evidence in closing argument, as well as appeal to local and general prejudices in closing argument, allowing the prosecutor to discuss and attack Petitioner's pre-trial silence in closing argument, allowing the prosecutor to discuss Petitioner's failure to present witnesses in closing argument, allowing the prosecutor to comment on the Petitioner's failure to testify?
6. Whether the trial court failed to give a proper in camera hearing and a definitive ruling as to the State's proffered evidence under Rule 404(b) of the West Virginia Rules of Evidence?
7. Whether the totality of the errors involved, coupled with the totality of the circumstances involved, combined with the extraordinary delay in bring a direct appeal (20) years through no fault of the Petitioner should afford the Petitioner the relief involved?

(Id.) By letter received February 5, 2015, Petitioner provided the WVSCA with a “Waiver of Counsel.” (Document No. 58-70.) On February 6, 2015, the State filed its Response Brief. (Document No. 58-67.) On February 13, 2015, Mr. Cook filed a Motion to Withdraw as Counsel. (Document No. 58-72.) By Order entered on February 24, 2015, the WVSCA granted Mr. Cook's Motion to Withdraw as Counsel and directed Petitioner to file his Reply Brief by March 30, 2015. (Document No. 58-73.) On March 30, 2015, Petitioner filed his pro se Reply Brief. (Document No. 58-75.) By Memorandum Decision filed on November 20, 2015, the WVSCA affirmed Petitioner's conviction and sentence. State v. Plymail, No. 14-0016 (Nov. 20, 2015); (Document No. 58-76.)

         B. State Habeas Petition:

         On March 13, 2013, Petitioner, proceeding pro se, filed his Petition for Writ of Habeas Corpus in the Circuit Court of Cabell County. Plymail v. Plumley, No. 13-C-159 (Cir. Ct. Cabell Co.); (Document No. 28-1.) Petitioner raised the following grounds for habeas relief:

1. The inordinate delay of Petitioner's appeal;
2. The trial court's coercive remarks to the jury;
3. The prosecutor's plainly improper closing argument;
4. Improper sentencing enhancement;
5. Denial of Petitioner's right to testify; and
6. Ineffective assistance of trial counsel.

(Document No. 1, p. 3.) By letter dated November 26, 2013, Stacy Adkins, Judge Ferguson's law clerk, inquired as to whether Petitioner wished to proceed with his habeas petition or to stay proceedings pending resolution of his direct appeal. (Document No. 58-31.) By letter received on December 11, 2013, Petitioner promptly informed Ms. Adkins that he did not wish to have his habeas proceedings stayed and that he would like to have habeas counsel appointed. (Document No. 58-35.) By Order entered on December 13, 2013, the Circuit Court appointed Ms. Sarah Dixon as habeas counsel and directed that an Amended Petition be filed no later than May 1, 2014. (Document No. 28-1 and 58-36.) Also on December 13, 2013, the State filed its Answer. (Document No. 58-76.) By Order entered on May 2, 2014, the Circuit Court appointed Mr. Steven Cook as co-counsel and granted Petitioner an extension of time “to a date to be determined by the Court” to file an Amended Petition. (Document No. 28-1 and 58-48.) Subsequently, Ms. Dixon accepted employment in the Cabell County Prosecutor's Office and filed a motion to withdraw as counsel. (Id.) On October 17, 2014, Ms. Dixon was relieved as counsel and Abraham Saad was appointed as counsel. (Document No. 28-1 and Document No. 58-58.) The Court directed that the Clerk of the Court provide a certified copy of the Order to Ms. Dixon, Mr. Saad, Mr. Cook, and the County Prosecutor. (Document No. 58-58.)

         By letter dated February 4, 2015, Petitioner notified Mr. Cook that he was dissatisfied with Mr. Cook's work on his direct appeal and waived his “right to any further assistance from you and your kind.” (Document No. 58-71.) By letter received February 5, 2015, Petitioner provided the WVSCA with a “Waiver of Counsel” concerning his direct appeal. (Document No. 58-70.) On February 13, 2015, Mr. Cook filed in the WVSCA a Motion to Withdraw as Counsel. (Document No. 58-72.) By Order entered on February 24, 2015, the WVSCA granted Mr. Cook's Motion to Withdraw as Counsel concerning Petitioner's direct appeal. (Document No. 58-73.) By Motion dated June 29, 2015, Mr. Cook requested that the Circuit Court allow him to withdraw as habeas co-counsel.[4] (Document No. 72-1.) On June 30, 2015, the Circuit Court granted Mr. Cook's Motion to Withdraw as Co-Counsel and stated that “[a] separate order appointing new counsel will be entered as necessary.” (Document No. 58-76 and 72-2.) The Clerk was directed to send a copy of the Order removing Mr. Cook as co-counsel to Mr. Saad. (Document No. 72-2.)

         Petitioner states that Mr. Saad made no attempt to communication with him despite that fact that Mr. Saad was appointed as habeas counsel. (Document No. 65, p. 20.) Following the Circuit Court's granting of Mr. Cook's motion to withdraw as counsel on June 30, 2015, Petitioner's State habeas proceedings laid dormant until May 18, 2016. (Id.) On May 18, 2016, the Circuit Court entered a Scheduling Order noting that “Petitioner had previously indicated he did not wish to have an attorney and thus is representing himself.” (Document No. 72-4.) The Circuit Court directed that Petitioner file his Amended Petition by July 1, 2016 (approximately six weeks from the date of the Scheduling Order), “or the matter will be dismissed from the docket of this Court.” (Id.) On June 29, 2016, Petitioner filed a pro se Motion for Extension of Time. (Document No. 72-5.) By Order entered on July 7, 2016, the Circuit Court granted Petitioner's Motion for Extension of Time allowing him until September 1, 2016, to file his Amended Petition. (Document No. 72-6.) On August 30, 2016, Petitioner filed a Motion to Replace Court Appointed Counsel. (Document No. 72-7.) In support, Petitioner stated that he had never filed a motion, letter, or other document waiving his right to counsel in his habeas case. (Id.) By Order filed January 18, 2017, the Circuit Court granted Petitioner's Motion, appointed Mr. Michael Meadows as habeas counsel, and extended the deadline for Petitioner to file his Amended Petition and Losh List until May 1, 2017. (Document No. 72-8.) On June 16, 2017, more a month and half after the filing deadline, Mr. Meadows filed a Motion requesting an extension of time to file Petitioner's Amended Petition. (Document No. 72-9.) By Order entered on June 21, 2017, the Circuit Court granted Mr. Meadows' Motion extending the filing deadline to August 31, 2017. (Document No. 72-10.) Nearly a month after the passing of his deadline, Mr. Meadows filed an additional Motion for Extension of Time on September 29, 2017. (Document No. 88-27.) The Circuit Court granted the Motion on October 4, 2017. (Id.) The most recent Docket Sheet from the Circuit Court reveals that no Amended Petition had been filed by Mr. Meadows as of February 22, 2018. (Id.)

         C. Section 2254 Petition:

         Petitioner filed the instant Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody on January 31, 2014. (Document No. 1.) In his Petition, Petitioner alleges the following grounds for habeas relief (Id., pp. 10 - 25.):

1. The State's 19-year delay in affording [Petitioner] an appeal of [his] criminal conviction violates the due process provisions of the Fourteenth Amendment to the United States Constitution.
2. Because the jurors at [Petitioner's] trial were subjected to judicial coercion, [his] conviction was obtained in violation of the due process provisions of the Fourteenth Amendment of the United States Constitution.
3. The plainly improper remarks made by the prosecutor during the State's rebuttal and closing were prejudicial enough to have denied [Petitioner] the right to a fair trial and, thus, violated the due process provision of the Fourteenth Amendment to the United States Constitution.
4. Because [Petitioner's] waiver of the right to testify was based on misleading statements made by the court and counsel, [his] conviction was obtained in violation of the due process provisions of the Fourteenth Amendment to the United States Constitution.
5. Because the trial court lacked jurisdiction to enhance [Petitioner's] sentence under West Virginia's recidivist statute, its imposition of a life sentence violated the due process provisions of the Fourteenth Amendment to the United States Constitution.
6. Because [Petitioner] was not provided with effective assistance of counsel, [his] conviction was obtained in violation of the Sixth Amendment to the United States Constitution.

(Id.)

         As Exhibits, Petitioner attaches the following: (1) A copy of an Order from the WVSCA filed on December 2, 1994, granting Petitioner's writ of mandamus directing Circuit Court Judge Alfred E. Ferguson, Jr., “to render a decision within thirty days of this order on the relator's motion to amend the dismissal order, motion for resentencing, and motion to dismiss Ms. Sheets as appellate counsel” (Document No. 1, pp. 27 - 30.); (2) A copy of Judge Ferguson's Order dated April 12, 1995, transporting Petitioner to the care, custody, and control of the Commissioner of Corrections (Id., p. 32.); (3) A copy of a letter from the Public Defender's Office addressed to Petitioner dated May 24, 1995 (Id., p. 34.); (4) A copy of Petitioner's “Re-Sentencing Order” dated July 21, 1995, as filed in the Circuit Court of Cabell County (Id., pp. 36 - 37.); (5) A copy of a letter from Petitioner addressed to Rory L. Perry, Clerk of the WVSCA, dated November 14, 2008 (Id., p. 39.); and (6) A copy of a letter from Petitioner addressed to Chief Justice Elliot E. Maynard dated November 14, 2008 (Id., pp. 40 - 42.).

         On February 23, 2015, Petitioner filed his “Supplemental Factual Statement and Exhibits F - M.” (Document No. 7.) As Exhibits, Petitioner attaches the following: (1) A copy of Petitioner's “Petition for Writ of Prohibition” as filed with the WVSCA on March 14, 2014 (Id., pp. 5 - 19.); (2) A copy of a letter from Petitioner addressed to Attorney Jason P. Goad dated March 25, 2014 (Id., pp. 21 - 24.); (3) A copy of a letter from Adriana Marshall, Staff Attorney with the WVSCA, addressed to Petitioner dated July 3, 2014 (Id., p. 26.); (4) A copy of a letter from Petitioner addressed to Ms. Marshall dated October 22, 2014 (Id., pp. 28 - 29.); and (5) A copy of letters from Petitioner addressed to Mr. Steven T. Cook, court-appointed counsel, dated October 7, 2014, December 3, 2014, August 21, 2014, January 15, 2015, and February 4, 2015 (Id., pp. 31 - 47.).

         By Order entered on February 23, 2015, the undersigned directed Respondent to file a Response to Petitioner's Petition. (Document No. 8.) On March 25, 2015, Respondent filed his Response and “Motion to Dismiss and Incorporated Memorandum.” (Document Nos. 13 and 14.) In his “Motion to Dismiss and Incorporated Memorandum, ” Respondent argued that “Petitioner has yet to exhaust his claims within the State courts, and has yet to have either his direct appeal or his habeas claims properly adjudicated by the SCAWV.” (Id.) On April 9, 2015, Petitioner filed his Responses in Opposition and Memorandum in Support. (Document Nos. 18 and 19.) Petitioner argued that the “inordinate and unjustified delay in adjudicating post-conviction claims for relief renders the state judicial process ineffective.” (Document No. 19, p. 2.) Respondent filed his Reply on April 10, 2015. (Document No. 20.)

         By Proposed Findings and Recommendation entered on December 21, 2015, Judge VanDervort recommended that Petitioner's Petition be dismissed without prejudice based upon his failure to exhaust. (Document No. 31.) Petitioner filed his Objections on January 11, 2016. (Document No. 36.) By Memorandum Opinion and Order entered on March 30, 2016, United States District Judge Robert C. Chambers adopted Judge VanDervort's recommendation and dismissed Petitioner's Petition without prejudice. (Document Nos. 38 and 39.) By per curiam opinion entered on November 23, 2016, the Fourth Circuit vacated and remanded the District Court's decision. (Document No. 50.) The Fourth Circuit determined “that the current state of the record is insufficient to establish as a matter of law that Plymail's petition should be dismissed for failure to exhaust.” (Id.)

         By Order entered on December 21, 2016, the undersigned directed Respondent to file a Response addressing Petitioner's Section 2254 Petition. (Document No. 55.) The undersigned further directed that to the extent Respondent wished to seek dismissal based upon Petitioner's failure to exhaust, Respondent should specifically address Petitioner's claim that he is excused from the exhaustion requirement because there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of Petitioner. (Id.)

         On February 2, 2017, Respondent filed his Answer, “Second Motion to Dismiss for Failure to Exhaust, ” and Memorandum of Law in Support. (Document Nos. 57, 58, 59.) First, Respondent acknowledged that Petitioner's direct appeal exhausted the majority of Petitioner's claims. (Document No. 58, p. 2.) Respondent, however, noted that Petitioner's claim of ineffective assistance of counsel had not been exhausted. (Id.) Second, Respondent stated that Petitioner's State habeas proceedings are ongoing and the resolution of these proceedings will result in exhaustion of Petitioner's ineffective assistance of counsel claim. (Id.) Third, Respondent argued that “the delay of Petitioner's State proceedings, in both his direct appeal and State habeas proceedings, is in part a result of Petitioner's constant quarreling with appointed counsel.” (Id.) As Exhibits, Respondent attaches 79 documents that include Petitioner's communications with counsel, State Court filings, and a copy of Docket Sheets from the Circuit Court. (Document No. 58.)

         On February 3, 2017, Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Petitioner, advising him of his right to file a response to Respondent's “Second Motion to Dismiss for Failure to Exhaust.” (Document No. 60.) On March 17, 2017, Petitioner filed his “Declaration in Opposition to Respondent's Motion to Dismiss” (Document No. 65, pp. 4 - 22) and “Memorandum of Law in Opposition to Respondent's Motion to Dismiss” (Id., pp. 124 - 139). Specifically, Petitioner argued that he should be excused from exhaustion because the “20-year delay in the appellate process is inordinate.” (Id.)

         As Exhibits, Petitioner attached the following: (1) A copy of a decision by the Lawyer Disciplinary Board's Investigative Panel dated April 26, 1996 (Document No. 65, pp. 25 - 28.); (2) A copy of the WVSCA's Order filed on December 2, 1994, granting Petitioner's Petition for Writ of Mandamus (Id., pp. 30 - 33.); (3) A copy of the Circuit Court's Order lifting the stay of execution of sentence entered on April 13, 1995 (Id., p. 35.); (4) A copy of a letter from Mr. Bouchillon dated May 24, 1995 (Id., p. 37.); (5) A copy of the Resentencing Order entered on July 27, 1995 (Id., pp. 39 - 40.); (6) A copy of a letter from Mr. Bouchillon dated August 31, 1995 (Id., p. 42.); (7) A copy of Petitioner's “Complaint Form” dated February 12, 2009, as submitted to the Lawyer Disciplinary Board (Id., pp. 44 - 48.); (8) A copy of a letter from Petitioner addressed to Chief Justice Elliot E. Maynard dated November 14, 2008 (Id., pp. 49 - 57.); (9) A copy of Petitioner's draft “Petition for Appeal” (Id., pp. 58 - 101.); (10) A copy of a letter from Mr. Bragg dated September 24, 2012 (Id., p. 103.); (11) A copy of a letter from Petitioner addressed to Mr. Goad dated January 9, 2014 (Id., pp. 105 - 109.); (12) A copy of a letter from Petitioner addressed to Mr. Cook dated August 13, 2014 (Id., pp. 111 - 120.); and (13) A copy of a letter from Mr. Cook dated November 11, 2014 (Id., pp. 121.).

         By Proposed Findings and Recommendations entered on May 23, 2017, the undersigned recommended that the District Court grant Respondent's “Second Motion to Dismiss for Failure to Exhaust” (Document No. 58) and dismiss without prejudice Petitioner's Section 2254 Petition. (Document No. 66.) On June 30, 2017, following the granting of an extension of time, Petitioner filed his Objections. (Document No. 70.) By Memorandum Opinion and Order entered on September 27, 2017, United States District Judge Robert C. Chambers accepted Petitioner's Objections, rejected the undersigned's recommendation, denied Respondent's “Second Motion to Dismiss for Failure to Exhaust, ” directed that Petitioner was excused from the exhaustion requirement of Section 2254, [5] and referred the matter back to the undersigned for further proceedings. (Document No. 74.) On September 27, 2017, the undersigned conducted a hearing via video conferencing for purposes of determining whether Petitioner wished to have counsel appointed concerning his Section 2254 proceedings. (Document No. 75.) During the hearing, Petitioner affirmed his request for appointment of counsel and the undersigned granted his request by appointing Troy Giatras as counsel. (Id.) The undersigned further directed that Petitioner had until November 28, 2017 to file any Amended Section 2254 Petition and Respondent should file his Answer within 45 days after the filing of any Amended Petition. (Id.)

         Following the granting of two extensions of time for the filing of an Amended Petition, Petitioner, by counsel, filed his Motion for Partial Summary Judgment and Memorandum in Support on January 15, 2018. (Document Nos. 84 and 85.) In support, Petitioner argued that he was entitled to partial summary judgment on his claim that a twenty-year delay in his State appeal violated the Due Process Clause. (Id.) As Exhibits, Petitioner attached the following: (1) The Affidavit of Neil R. Bouchillon (Document No. 84-1.); and (2) A copy of “Petitioner's Supplemental Appendix Record” as filed with the WVSCA on March 27, 2015, which includes attorney-client correspondences and Petitioner's letters to the Circuit Clerk (Document No. 84-2.).

         On March 1, 2018, Respondent filed his Answer, “Motion for Summary Judgment, ” Memorandum in Support, and “Response in Opposition to Petitioner's Motion for Partial Summary Judgment.” (Document Nos. 88, 89, 91, 92.) In his “Motion for Summary Judgment, ” Respondent argues as follows: (1) “The Nineteen (19) year delay in Petitioner's direct appeal is not attributable to the State of West Virginia, and Petitioner did not suffer unconstitutional prejudice as a result of the delay” (Document Nos. 89 and 91, pp. 10 - 15.); (2) “Petitioner's conviction of second degree sexual assault was rendered by a fair and impartial jury. Moreover, the jury was not improperly coerced by the Circuit Court during deliberations” (Id., pp. 16 - 17.); (3) “The prosecutor's remarks during the State's closing rebuttal argument did not violate Petitioner's constitutional right to due process of law” (Id., pp. 17 - 18.); (4) “Petitioner knowingly, intelligently, and voluntarily waived his right to testify in his own defense during trial” (Id., pp. 18 - 19.); (5) “The Circuit Court did not lack jurisdiction to impose a recidivist sentence upon Petitioner because Petitioner requested a continuance of the recidivist hearing until the next term of court” (Id., p. 20.); and (6) “Petitioner fails to adequate support his claim of ineffective assistance of counsel; the facts pled fail to show either that counsel's actions were objectively unreasonable or that Petitioner suffered unconstitutional prejudice as a result” (Id., pp. 21 - 25.). In his “Response in Opposition to Petitioner's Motion for Partial Summary Judgment, ” Respondent references and incorporates his “Memorandum of Law in Support of his Motion for Summary Judgment” (Document No. 91, pp. 10 - 15). (Document No. 92.)

         As Exhibits, Respondent attaches the following: (1) A copy of Petitioner's Indictment as filed in State v. Plymail, No. 93-F-50 (Cir. Ct. Cabell Co. Feb. 22, 1994) (Document No. 88-1.); (2) A copy of Petitioner's Pretrial Motions as filed in No. 93-F-50 (Document No. 88-2.); (3) A copy of the Circuit Court's “Order to Produce Psychiatric Records” Order denying Petitioner's Motion (Document No. 88-3.); (4) A copy of the Circuit Court's “Order Denying Various Defendant Joint Motions” (Document No. 88-4); (5) A copy of Petitioner's conviction order (Document No. 88-5.); (6) A copy of Petitioner's Recidivist Information (Document No. 88-6.); (7) A copy of Petitioner's pro se Motion to Dismiss Information (Document No. 88-7.); (8) A copy of the Circuit Court's Order denying Petitioner's Motion to Set Aside the Verdict and Motion to Dismiss Information (Document No. 88-8.); (9) A copy of Petitioner's “Amended Re-Sentencing Order” as filed on November 13, 2013 (Document No. 88-9.); (10) A copy of Petitioner's Appeal Brief as filed with the WVSCA on November 18, 2014 (Document No. 88-10.); (11) A copy of the State's Response Brief as filed with the WVSCA on February 6, 2015 (Document No. 88-11.); (12) A copy of Petitioner's pro se Reply Brief as filed with the WVSCA on March 30, 2015 (Document No. 88-12.); (13) A copy of the WVSCA's “Memorandum Decision” filed on November 20, 2015, affirming the decision of the Circuit Court (Document No. 88-13.); (14) A copy of Petitioner's pro se Petition for Writ of Habeas Corpus as filed with the Circuit Court of Cabell County (No. 13-C-159) (Document No. 88-14.); (15) A copy of the transcripts from Petitioner's Preliminary Hearing conducted on September 25, 1992, in No. 93-F-50 (Document No. 88-15.); (16) A copy of the transcripts from the hearing conducted on March 12, 1993 and March 17, 1993, concerning Petitioner's pro se motion to dismiss appointed counsel (George D. Beter) in No. 93-F-50 (Document Nos. 88-16 and 88-17.); (17) A copy of the transcripts from a pretrial hearing conducted on April 26, 1993 and May 12, 1993, concerning a Motion to Quash a Subpoena for Reporter David Rogers, Motion to Disqualify the Prosecutor's Office, Motion for a Change in Venue, and Motion to Suppress as filed in No. 93-F-50 (Document Nos. 88-18 and 88-19.); (18) A copy of the trial transcripts as filed in No. 93-F-50 (Document Nos. 88-20 and 88-21.); (19) A copy of the transcripts from a post-trial hearing conducted on September 9, 1993, concerning Petitioner's Motion to Renew the Motion for Judgment of Acquittal and his Motion to Set Aside the Verdict in No. 93-F-50 (Document No. 88-22.); (20) A copy of the transcripts from the post-trial hearing conducted on December 1, 1993, December 6, 1993, December 20, 1993, and February 14, 1994, concerning Petitioner's Motion to Set Aside the Verdict in No. 93-F-50 (Document Nos. 88-23, 88-24, 88-25, and 88-26.); (21) A copy of the transcripts from Petitioner's post-trial hearing concerning this Motion to Dismiss Information and Sentencing hearing conducted on February 14, 1994, in No. 93-F-50 (Document No. 88-26.); and (22) A copy of the Circuit Court's Docket Sheet for Petitioner's State habeas case (No. 13-C-159) (Document No. 88-27.).

         On April 30, 2018, Petitioner, by counsel, filed his “Memorandum in Reply to Respondent's Response in Opposition to Petitioner's Motion for Partial Summary Judgment” (Document No. 96), a “List of Undisputed Facts” (Document No. 96-1), and his “Memorandum in Opposition to Respondent's Motion for Summary Judgment” (Document No. 97).

         By Proposed Findings and Recommendation entered on July 20, 2018, the undersigned recommended that the District Court deny Petitioner's Motion for Partial Summary Judgment and remand the case back to the undersigned for further proceedings. (Document No. 98.) After being granted an extension of time, Petitioner filed his Objections on August 28, 2018. (Document No. 102.) Petitioner's Motion for Partial Summary Judgment is currently pending before the District Court.

         FACTUAL BACKGROUND

         On September 13, 1992, Petitioner allegedly sexually assaulted Kathy Young by forcing her to perform oral sex upon him following consensual sexual relations. Ms. Young testified that on September 12, 1992, she went to Calamity Café to meet some friends. (Document No. 88-20, p. 133.) Ms. Young explained that Calamity Café is a restaurant that serves alcohol, which often had a band in the evenings and weekends. (Id., p. 134.) Ms. Young stated that when she entered the Café on September 12, 1992, she joined her girlfriends that were sitting at the bar. (Id.) Ms. Young acknowledged that she had five or six Bacardi and Cokes while at the Café. (Id., p. 135.) Ms. Young explained that she met Petitioner at the Café and they engaged in a conversation about “general stuff.” (Id., pp. 136-37.) Ms. Young explained that later in the evening she realized Petitioner was intoxicated when he spilled his drink. (Id., p. 138.) At this point, Ms. Young stated that she asked the bartender to bring Petitioner a coffee. (Id.) As Petitioner was drinking his coffee, Ms. Young stated that she was talking about leaving and Petitioner also stated that he was going home. (Id., p. 139.) Ms. Young stated that she then asked Petitioner if he was okay to drive, and she offered him a ride. (Id., p. 140.) Ms. Young acknowledged that Petitioner was “a nice person” at that point in the evening. (Id.) Ms. Young stated that she and Petitioner left the Café between 1:30 a.m. to 2:00 a.m. on September 13, 1992. (Id., pp. 140-41.) Once they arrived at Petitioner's apartment, Ms. Young acknowledged that she asked if she could use his restroom. (Id., p. 144.) Ms. Young explained that they entered Petitioner's apartment where she went straight to the restroom. (Id., pp. 144-45.) Once Ms. Young exited the restroom, she explained that Petitioner was standing in the doorway of the living room and she followed him into the living room where she took a seat on the love seat. (Id., pp. 148-49.) Ms. Young explained that Petitioner had a seat beside her and “we started holding hands and kissing and stuff and one thing led to another and we had sex.” (Id., p. 150-51.) Ms. Young explained that the consensual sexual encounter began in the living room where both individuals undressed and then continued into the bedroom. (Id.) Ms. Young explained that the parties engaged in oral sex and “regular intercourse” while in the living room. (Id., p. 180.) Ms. Young stated that the consensual sexual acts lasted for approximately an “hour and a half.” (Id., p. 152.) Ms. Young testified that she never bit Petitioner during or after their sexual interaction. (Id., pp. 152 and 196.)

         Once their consensual sexual encounter had concluded, Ms. Young explained that she exited the bedroom and entered the living room to get a cigarette from her purse. (Id., p. 152.) Ms. Young explained that her purse and all of her clothing were in the living room. (Id.) Ms. Young also stated that she asked Petitioner for a glass of water and told him she “needed to go home because [she] needed to let [her] dogs out.” (Id., p. 153.) During this time, Ms. Young stated that Petitioner asked her several times to “just stay, ” but Ms. Young consistently told him she needed to leave to let her dogs out. (Id., pp. 153-54.) Ms. Young stated that when she picked up part of her clothes, Petitioner “started coming up against [her] and was, like, please don't go; and he was, like, pushing his body up against [her] and [she] just kept backing away and [she] told him [she] really needed to go home.” (Id., p. 154.) Ms. Young explained that Petitioner just kept coming at her, pushing his body up against her, until she backed up and fell into a chair in the living room. (Id.) Ms. Young testified that she became fearful of Petitioner at this point because “something about him changed.” (Id., pp. 154-55.) Ms. Young explained the “change” in Petitioner as follows:

Everything. His whole, I guess, persona. He - - I felt threatened. He didn't seem - -he had seemed very gentle and kind. When we had had sex he wasn't rough. He was very gentle and very nice. Not at any point even, like rough, aggressive, nothing like that. And he just was, like, getting aggressive and it was scaring me.

(Id., p. 155.) Ms. Young stated that she had done nothing to cause the change other than stating that she wanted to go home. (Id., pp. 155 and 195.) Ms. Young explained that once she fell back into the chair, Petitioner “sat down on the edge of the chair and leaned over [her] . . . just, like, trying to hold [her] in the chair.” (Id., p. 156.) Ms. Young explained that she felt “very threatened at that point” and she “asked him to please stop that he was scaring [her] and then he hit [her].” (Id., pp. 157-58.) Ms. Young explained that Petitioner hit her in the face with an open hand with such force that it turned her head. (Id., p. 158.) Ms. Young explained that after she was hit, she “was scared to death. [She] just wanted to go home.” (Id.) Ms. Young stated that Petitioner then “asked if [she] was afraid and [she] said, ‘Yes,' and he said, ‘Good, I want you to be afraid.” (Id.) Ms. Young testified that Petitioner then forced her perform oral sex upon him by grabbing her by the hair of her head and shoving his private parts towards her face. (Id., pp. 158-59.) Ms. Young stated that Petitioner had an erection at this time and asked her “if [she] sucked better dick when [she] was afraid.” (Id., p. 159.) Ms. Young testified that Petitioner “kept asking me that.” (Id.) Ms. Young verified that she performed oral sex upon Petitioner, but he did not ejaculate. (Id., p. 160.) Ms. Young explained that the foregoing events lasted about twenty minutes and he then forced her to the bedroom. (Id., p. 160-62.) Ms. Young testified that Petitioner pushed her down on the bed and climbed on top of her. (Id., pp. 162-63.) Ms. Young again stated that Petitioner was continuing to ask her if she was afraid, and she continuous told him “yes . . . please just let me go.” (Id., p. 163.) Ms. Young stated that Petitioner “kept smiling when [she] would say [she] was afraid” and “[h]e seemed to enjoy that [she] was afraid.” (Id., pp. 164-65, and 195.) Ms. Young explained that when Petitioner was getting into a position to try to make her perform oral sex again, she kicked him and ducked under his arm and ran to the door of the bedroom. (Id., p. 166.) Ms. Young stated that she ran towards the fire escape naked and yelling for help. (Id.) Ms. Young explained that Petitioner was running right behind her and tackled her as she hit the doorway to go outside. (Id., p. 167.) Ms. Young stated that after she fell, she was able to kick away from Petitioner and run to the next-door neighbor's door where she banged on the door and fell again. (Id., p. 167-68.) Ms. Young explained that when she fell the second time, Petitioner grabbed her again and “pulled his weight up [her] body until he got [her] hair and then he, like, kept bending [her] bead back, like, trying to drag [her] back into the apartment.” (Id., p. 168.) Ms. Young stated that in response she started hitting and kicking at him and then she just grabbed the handrail to try to prevent him from dragging her back into the apartment. (Id., pp. 168 and 186.) Ms. Young further stated that Petitioner was kicking at her. (Id., p. 186.) Ms. Young testified that she had some bruising to her arm, face, and back. (Id., p. 169.) Ms. Young explains she was finally able to get away when the downstairs neighbor yelled something like “What is going on up there?” and “as soon as she screamed it startled him and he jumped.” (Id., p. 169-70.) Ms. Young testified that when Petitioner jumped, he hit his head on an air conditioning unit that was sticking out and it seemed to almost stagger him. (Id., p. 170.) Ms. Young explained that she then ran downstairs to the neighbor and the neighbor's boyfriend came out and wrapped a sheet around her. (Id.) Ms. Young stated that the neighbor asked if she had been raped and she responded “yes.” (Id.) Ms. Young explained that the police were called and she was taken to the hospital by an ambulance. (Id.)

         Ms. Young testified that she was transported to the Cabell-Huntington Hospital where she was evaluated by a doctor. (Id., p. 171.) Ms. Young explained that she informed hospital staff about injuries to her face and nose. (Id., p. 188.) Ms. Young stated that she told hospital staff that her nose was broken, but she refused x-rays because she had a broken nose in the past and “they can't do anything for it . . . and [she] just wanted to go home.” (Id., pp. 171 and 188.) Ms. Young stated that she also pointed out redness or bruising to her arm. (Id., p. 189.) Ms. Young explained that the doctor was only in the exam room for approximately three minutes and that she mostly “talked with the nurse and the police officer.” (Id., p. 190.) Ms. Young further acknowledged that she was interviewed by Detective Ball while at the hospital. (Id., p. 171.) Ms. Young testified that she refused an oral rape kit. (Id., p. 172.) Ms. Young explained that she refused the rape kit because the rape counselor, Detective Ball, and the doctor explained that the rape kit “wouldn't do any good” because there had been consensual oral sex prior to the rape. (Id., pp. 172 and 193.) Ms. Young further testified that she only discussed possible battery charges against Petitioner because she wanted to avoid getting on the stand and testifying as to forgoing. (Id., p. 203.)

         Ginger Mascair testified that she lived in the same apartment complex as Petitioner on September 13, 1992. (Id., p. 208.) Ms. Mascair explained that her past employment included the United States Navy where she was a hospital corpsman, paramedic, EMT, and basic cardiac care. (Id.) As part of her EMT experience, Ms. Mascair explained that she would often deal with spousal abuse. (Id., pp. 209-11.) On September 13, 1992, Ms. Mascair explained that she was in her bedroom and heard a loud thump that “sounded like a bowling ball or something heavy hitting the floor.” (Id., pp. 213, 230.) Ms. Mascair stated that when she heard the loud thump, she proceeded to her roommate's room and “walked out the back door, which is part of Stephanie's room.” (Id., p. 213.) Ms. Mascair explained that she heard someone yelling, “Please, somebody help me. Help me! Call 911.” (Id.) Ms. Mascair stated that “as I walked out onto the cat-walk, which is right outside the door, I looked up over the cat-walk to look above me and there was a young lady running down the cat-walk screaming, ‘Help me! Somebody help me!” (Id.) Ms. Mascair explained that she told Ms. Young to “come down here” and “she ran down to our part on our cat-walk from the third floor to the second floor cat-walk and she had no clothes on and came directly down to our apartment.” (Id., pp. 213-14.) Ms. Mascair, however, acknowledged that she did not see Petitioner tackle Ms. Young nor did she see Ms. Young holding to the rails to prevent herself from being drugged back into Petitioner's apartment. (Id., p. 232.) Ms. Mascair described Ms. Young as follows: “She was extremely frantic. She was scared. She was crying. She was having problems at that time evening talking straight. She was extremely disoriented and basically was just scared.” (Id., p. 215.) Ms. Mascair explained that she took Ms. Young into the apartment, where they covered her with a sheet, and Ms. Young stated that she had been raped. (Id.) Ms. Mascair stated that her roommate called 911 reporting a possible rape. (Id., pp. 215-16.) Ms. Mascair verified that Ms. Young did not go into any details about the rape and only went into vague detail about being hit. (Id., p. 216.) Ms. Mascair testified that while her roommate was calling 911, she heard something on the cat-walk and she walked outside. (Id., pp. 231-32.) Ms. Mascair testified that Petitioner was leaning over the cat-walk and yelled “You can come and get your f**king clothes, you f**king whore.” (Id.) Ms. Mascair stated that police arrived within approximately 10 minutes and the paramedics arrived in approximately 20 minutes after the 911 call. (Id., p. 217.) Ms. Mascair testified that Ms. Young told her that her and Petitioner had met at the Calamity Café, she had come up to Petitioner's apartment, the two engaged in sexual activity, and when she decided to leave the Petitioner's personality changed and he forced her to do things she did not want to do. (Id., pp. 218-19.) Ms. Mascair testified that she noticed a “large red mark” on Ms. Young's face and “large red whelp-like marks on her back, on her shoulders.” (Id., p. 220.) Ms. Mascair testified that she talked to the police on the night of the incident and then she gave a taped statement to Detective Ball. (Id., pp. 222-23.) Ms. Mascair verified that her taped statement was transcribed, and she verified the accuracy of the typed statement. (Id., p. 224-27.) Ms. Mascair explained that in her statement to Detective Ball, she did not state that Ms. Young told her she had been raped because “he never asked me if she was raped.” (Id., pp. 241 and 243.)

         The State rested its case and Petitioner called Dr. Alfred Baldera, John Rameo, and Detective David Ball as defense witnesses. (Document No. 88-21, pp. 11-12, 31, 37.)

         Dr. Alfred Baldera testified that he worked in the Emergency Department at the Cabell-Huntington Hospital. (Id., pp. 12-13.) Dr. Baldera testified that he examined Kathy Young in the ER during the early morning hours of September 13, 1992. (Id., p. 14.) Dr. Baldera stated that Ms. Young claimed she had been sexually assaulted and struck in the face. (Id., p. 15.) Dr. Baldera indicated that Ms. Young's history was taken by the triage nurse and her history did not indicate her scalp being tender or any other injuries to her body. (Id.) Dr. Baldera testified that he examined Ms. Young and she had contusions on her face and nose. (Id., pp. 15-16, 24.) Dr. Baldera, however, acknowledged that he did not examine Ms. Young's whole body. (Id., pp. 20-21.) Dr. Baldera explained that his examination was limited to her face, arms, and “things that were visible on the surface.” (Id., p. 21.) Dr. Baldrea acknowledged that he could not recall if he examined Ms. Young's back. (Id.) Dr. Baldera described that Ms. Young had a mild contusion on the right side of her face and there was redness and tenderness of the nose. (Id., p. 16.) Dr. Baldera affirmed that he requested an x-ray of Ms. Young's nose, but she declined the x-ray. (Id., pp. 16-17.) Dr. Baldera acknowledged that he examined her nose from a clinical standpoint and found no break. (Id., p. 17.) Dr. Baldera, however, explained “that's gross judgment as far as the nose is concerned. That is no accurate judgment there.” (Id.) Dr. Baldera stated that he discussed performing a rape kit with Ms. Young, but she declined the test. (Id., pp. 18-19.) Dr. Baldera explained that Ms. Young did not give him a reason for refusing the rape test - “[s]he simply refused it.” (Id., p. 19.) Dr. Baldera further stated that he never advised Ms. Young to refuse the rape test. (Id., pp. 19 - 22.) Dr. Baldera explained that information concerning an alleged sexual assault is usually done by the police, and he had no record of any information concerning the details of the alleged sexual assault involving Ms. Young. (Id., pp. 21-22) Finally, Dr. Baldera explained that Ms. Young was crying when she first arrived at the ER, but by the time he examined Ms. Young, she appeared “somewhat angry.” (Id., p. 28.) Dr. Baldera stated that rape victims can “go through the gambit of emotion, ” but Ms. Young “seemed to be more angry at us rather than at anyone else.” (Id.)

         John Rameo testified that he was returning his apartment on September 13, 1992, between 3:00 a.m. and 4:00 when he heard loud voices coming from the area of Petitioner's apartment. (Id., pp. 32-33.) Mr. Rameo explained he heard a loud male voice yelling “Get back in here and get your clothes on, ” or “Get out here and - - get your clothes on and get out of here.” (Id., p. 34.) Mr. Rameo denied hearing a female voice and stated he had no visual contact with the area of the voice. (Id., pp. 34-35.) Mr. Rameo acknowledged that there could have possibly been shouting prior to the male voice, which he did not hear. (Id., p. 37.)

         Detective David Ball testified that in the early morning hours of September 13, 1992, he was called out the Cabell-Huntington Hospital to investigate an alleged sexual assault of Ms. Young. (Id., p. 38.) Detective Ball explained that upon arriving at the hospital, he was briefed by Officer Williams. (Id., p. 39.) Detective Ball stated that Officer John Williams was one of several officers that had first responded to the apartment complex following the 911 call, and Officer Williams followed the victim to the hospital. (Id., p. 41.) Detective Ball stated that the 911 call came in at 4:15 a.m. on September 13, 1992. (Id., p. 40.) Detective Ball explained that he took a rape kit with him to the hospital, which is standard practice. (Id., p. 42.) Detective Ball testified that “[t]he rape kit is provided for vaginal swabbing, oral swabbing, the gathering of pubic hair, fingernail scrapings, all of which is to assist in identifying a suspect.” (Id.) Detective Ball stated that he had an opportunity to talk to the victim for approximately 20 minutes and the victim's mother and a rape counselor was also present. (Id.) Detective Ball stated that Ms. Young “was wearing a hospital gown and was pretty visibly shaken, ” but he “did not do an examination of anything other than the face and shoulders maybe.” (Id., pp. 43-44.) Detective Ball explained that he could see what appeared to be a definite red mark on Ms. Young's right cheek and redness around her nose. (Id.) Detective Ball stated that Ms. Young appeared to be “visibly shaken” and “appeared very sober.” (Id., p. 44.) Detective Ball testified that Ms. Young indicated that her nose and face was giving her considerable pain and she had a headache. (Id., pp. 45 - 46.) Detective Ball acknowledged that he did not hear Ms. Young complain of any injuries to her back or abdomen. (Id.) Concerning the performance of the rape kit, Detective Ball testified as follows:

I told the doctor that she did not want to go through the embarrassment of the rape kit. She had already admitted that there was consensual sex possibly to the point of ejaculation. She had also stated that there was oral copulation and at that point we did not need physical evidence to gain an identity of a suspect. We had a suspect.

(Id., p. 47.) Detective Ball acknowledged that Ms. Young informed him that she was tackled as she exited Petitioner's apartment onto the catwalk. (Id., p. 67.) Detective Ball explained that after talking to Ms. Young, he thought “there was definitely probable cause to interview [Petitioner.]” (Id., p. 51.) Detective Ball further explained that after he informed Ms. Young that she would be required to testify as to facts of the sexual assault and “it was not going to be a pleasant experience but a necessary one, ” Ms. Young inquired as to whether battery charges could be filed against Petitioner. (Id., pp. 52, 69-70.) Detective Ball testified that he explained to Ms. Young that “the same things would take place in a misdemeanor battery and the same facts revealed, the same line of questioning” and “If you are going to subject yourself to the same nature of questioning and embarrassment, then you go with the rape case.” (Id.) Detective Ball explained that Ms. Young indicated her concern and embarrassment as follows: “I had sex with him willingly up to that point . . . How can I get across to anyone that at some point it was against my will and that it was a violent act.” (Id., p. 71.) Detective Ball acknowledged that Ms. Young had expressed from the very beginning of his interview that she wanted to go home, which is consistent with a rape victim. (Id., p. 76.) Detective Ball acknowledged that Ms. Young indicated that the relationship with Petitioner turned violated when she indicated that she wanted to go home. (Id., p. 77.) Detective Ball testified that Ms. Young indicated that the more scared she got, the more thrilled Petitioner got. (Id., p. 78.) Detective Ball stated that Ms. Young explained that Petitioner forced his body next to her face and repeatedly asked her if she was afraid, and inquired whether she performed better oral sex when she was afraid. (Id., p. 79.) Detective Ball testified that Ms. Young explained that Petitioner then forced her into the bedroom, where she was eventually able to escape to the rear exit. (Id., pp. 80-83.)

         Detective Ball testified that Petitioner was taken into custody on the night of the incident, and he interviewed Petitioner at approximately 6:00 a.m. (Id., p. 54.) Detective Ball explained that he interviewed Petitioner for approximately 20 minutes, enough time for Petitioner to write out a statement. (Id., p. 55.) Detective Ball stated that Petitioner signed a voluntary waiver of his rights without any refusal or hesitation. (Id., pp. 56 - 57.) Detective Ball explained that he informed Petitioner of Ms. Young's allegations and asked Petitioner “his side of the story.” (Id., p. 58.) Detective Ball testified that Petitioner wrote the following statement:

I came home with a girl I met at Calamity Café. She said her name was Gina. We made love . . . In the living room and my bedroom. We enjoyed one another's company, but at one point she bit me . . . I got mad and slapped her. She pushed me away and ran outside. She had bitten my shoulder . . . I followed her outside and told her to get her clothes and leave. But, she screamed “F**k you, get away, ” and ran down the steps. I talked with the neighbor (we had woke him up) . . . he told me to go find her or I might get in trouble . . . But, I went back to the living room and went to sleep. I was on the couch when the officers woke me up . . .

(Id., p. 60.) Detective Ball stated that Petitioner indicated he and Ms. Young had engaged in consensual oral sex. (Id., p. 68.) Detective Ball testified that Petitioner “pulled his shirt down and stated that he had been bitten and he did have a red mark on his chest.” (Id., p. 61.) Detective Ball acknowledged that he decided that he was not going to file any charges at that time and he took Petitioner home. (Id.) Detective Ball further acknowledged that Petitioner signed a “release of claims, ” which is a “stipulation that they agree not to sue any of the officers for having him in custody for questioning at that time.” (Id., pp. 64 - 65.)

         THE APPLICABLE STANDARDS

         Federal habeas relief is available to a State prisoner under 28 U.S.C. § 2254, only if the prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)(2002); See also Sargent v. Waters, 71 F.3d 158, 160 (4th Cir. 1995). Section 2254(d) provides that when the issues raised in a Section 2254 Petition were raised and considered on the merits in State Court habeas proceedings, federal habeas relief is unavailable unless the State Court's decision:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         To trigger the above AEDPA deference, a State Court's decisions must be “adjudicated on the merits.” Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015)(If the State court's decision does not qualify as an “adjudication on the merits, ” AEDPA deference is not triggered and the Court must review the issue de novo.). A claim is “adjudicated on the merits” if the claim “is exhausted in state court and not procedurally defaulted.” Gray v. Zook, 806 F.3d 783, 798 (4th Cir. 2015)(citation omitted); also see Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999)(explaining that a claim has been adjudicated upon the merits where the claim was “substantively reviewed and finally determined as evidenced by the state court's issuance of a formal judgment or decree”); Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogation on other grounds recognized, United States v. Barnett, 644 F.3d 192 (4th Cir. 2011)(Exhaustion requires that a claim be “fairly presented, ” such that the claim was presented face-up and squarely, providing an opportunity for review by the highest state court.) It is a case-specific inquiry as to whether a claim has been “adjudicated on the merits, ” but a “claim is not ‘adjudicated on the merits' when the state court makes its decision ‘on a materially incomplete record.'” Braxton, 780 F.3d at 202 (citing Winston v. Kelly (Winston I), 592 F.3d 535, 544 (4th Cir. 2010)(The record may be materially incomplete if a state court “unreasonably refuses to permit further development of the facts.”) The Fourth Circuit has explained that where a state court “unreasonably refuses to permit further develop of the facts, ” it passes up the opportunity that exhaustion ensures. Winston v. Pearson (Winston II), 683 F.3d 489, 496 (4th Cir. 2012)(exhaustion requires that a state court have an opportunity to apply the law and consider all relevant evidence to petitioner's claim). Additionally, the “adjudication on the merits” requirement does not exclude “claims that were decided in state court, albeit in a summary fashion.” Thomas v. Taylor, 170 F.3d 466, 475 (4thCir. 1999); also see Winton II, 683 F.3d at 502(discussing Harrington v. Richter, 562 U.S 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)(noting that although a state court's summary denial may be presumed an “adjudication on the merits, ” a federal court may still find that the state court did not adjudicate a claim on the merits if the thoroughness of the state court's development of the record is challenged and there was a materially incomplete record before the state court.) When a state court summarily rejects a claim and does not set forth its reasoning, the federal court independently reviews the record and clearly established Supreme Court law. Bell v. Jarvis, 236 F.3d 149 (4th Cir.), cert. denied, 524 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). The Court, however, must still “confine [it's] review to whether the court's determination ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'” Id. at 158; also see Harrington, 562 U.S at 98 - 99, 131 S.Ct. at 770(“Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a ‘claim,' not a component of one, has been adjudicated.”).

         In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court stated that under the “contrary to” clause in § 2254(d)(1), a federal habeas Court may grant habeas relief “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. at 1523. A federal habeas Court may grant relief under the “unreasonable application” clause of § 2254(d)(1) where the State Court identified the appropriate Supreme Court precedent but unreasonably applied the governing principles. Id.(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.”); also see Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 191 L.Ed.2d 464 (2015)(per curiam)(For a state court's decision to be an unreasonable application of clearly established federal law, the ruling must be “objectively unreasonable, not merely wrong; even clear error will not suffice.”) Thus, a litigant must “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S at 103, 131 S.Ct. at 770. When a petitioner challenges the factual determination made by the 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 fact.'” 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 the 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); also see 28 U.S.C. § 2254(e).[6] On this framework, consideration should be given to the Motions for Summary Judgment.

         Motion for Summary Judgment:

         Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 - 87, 106 S.Ct.1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying facts in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Generally speaking, therefore, summary judgment will be granted unless a reasonable jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no facts or inferences which can be drawn from the circumstances will support non-moving party's claims, summary judgment is appropriate.

         ANALYSIS

         1. Appellate delay resulted in a violation of due process:

         The undersigned notes that Petitioner asserted the above claim in his Motion for Partial Summary Judgment. (Document No. 85.) For the reasons fully explained within the undersigned's Proposed Findings and Recommendation entered on July 20, 2018 (Document No. 98), the undersigned finds that Petitioner's above claim is without merit and should be dismissed.

         2. Trial court improperly coerced the jury:

         In his Petition, Petitioner argues that “[b]ecause the jurors at my trial were subjected to judicial coercion, my conviction was obtained in violation of the due process provisions of the Fourteenth Amendment of the United States Constitution.” (Document No. 1, pp. 18 - 19.) Petitioner explains that “at the conclusion of voir dire, the court's attention was directed to the problems that might arise if two of the prospective jurors were actually required to serve as members of the jury.” (Id., p. 18.) Petitioner states that his trial was expected to last at least into Thursday, and Prospective Jurors Angela Adams and Earl Perry notified the trial court that they had “important commitments for the coming Friday.” (Id.) Petitioner complains that although the Court could have excused Jurors Adams and Perry, the trial court declined to do so stating the following: “We will stay Thursday. We will get finished. We will stay late if we have to to get finished.” (Id.) Petitioner explains that Jurors Adams and Perry became members of his jury. (Id.) Petitioner complains that “all of the jurors knew about the prior commitments of Adams and Perry and about the court's desire for a two-day trial.” (Id.) Plaintiff asserts that throughout the trial, the trial court continuously reminded the jurors and the attorneys of its desire for the trial to concluded by Thursday. (Id., pp. 18 - 19.) Petitioner contends that after two and a half hours of deliberations, the Foreperson Adams reported that the jurors were deadlock at “six-four-two.” (Id., p. 19.) Petitioner complains that the trial court instructed the jurors to return to the jury room and “discuss it again and see whether or not you all feel as a group that you can continue to deliberate and possible arrive at a verdict.” (Id.) Petitioner states that although the trial court emphasized the jurors' duty to agree upon a verdict, the trial court failed to explain the duty of reasonable dissent. (Id.) Petitioner asserts that after 40 minutes of further deliberation, the jurors returned a guilty verdict. (Id.)

         In his Motion for Summary Judgment, Respondent argues “Petitioner's conviction for second degree sexual assault was rendered by a fair and impartial jury.” (Document No. 91, pp. 16 - 17.) Respondent states that Petitioner's “claim arises solely out of the circuit court instructing the jury to continue deliberations when the jury informed the court they were deadlocked after deliberating for only two and a half hours.” (Id., p. 16.) Citing Allen v. United States, 164 U.S. 492, 501 (1896), Respondent argues that a trial court's discretion to instruct the jury to continue deliberations has been permissible since 1896. (Id., p. 17.) Respondent contends that the WVSCA considered and denied Petitioner's above claim and such “should be given deference pursuant to 28 U.S.C. § 2254.” (Id., p. 16.) Respondent asserts “there is nothing in the record to refute the WVSCA's findings.” (Id.)

         In Response, Petitioner first argues that the above claim is subject to de novo review. (Document No. 97, pp. 10 - 11.) Petitioner argues that in asserting the above claim before the WVSCA, he failed to specifically reference a federal constitutional violation. (Id.) Therefore, Petitioner states that this claim was not “fairly presented” to the State courts. (Id.) Next, Petitioner argues that this Court should find that the trial court's “coercive remarks and instructions resulted in a violation of Petitioner's right to due process.” (Id., pp. 13 - 17.) Petitioner contends that by the conclusion of voir dire all of the jurors were “well aware of the court's desire for a two-day trial” and jurors “are inclined to comply with the court's desires.” (Id., p. 13.) Thus, Petitioner argues that Petitioner's trial possessed a coercive atmosphere from the start. (Id., p. 14.) Petitioner again contends that the trial court continuously reminded the juror and the attorneys of its desire of a two-day trial. (Id.) Petitioner contends that the worst of the reminders occurred Thursday morning when the trial “court stated to the jurors, ‘We have got to finish this case today,' and then threatened Adams and Perry with the possibility of overnight incarceration.” (Id.) Petitioner argues that “[w]ith its gratuitous reminders and threatening remarks, the court pressured the jurors to be expeditious rather than thoughtful.” (Id.) Petitioner asserts that “performing their duties expeditiously was the only option available to the jurors - the only means of insuring that the court was never tempted to adjourn for the evening and carry out its threat.” (Id.) Petitioner further notes that prior to deliberations, as part of its charge to the jury, the trial court delivered a unanimity instruction modeled upon the one upheld in State v. Taft, 110 S.E.2d 727 (1959). (Id., p. 15.) Petitioner complains that unlike the instruction given in Taft, the trial court's instruction failed to explain the duty of reasonable dissent. (Id.) Specifically, Petitioner explains that the instruction omitted “the standard admonition that agreement should only be reached without a sacrifice of conscientious convictions and does not otherwise seek to convey that ‘reasoned opinions and firm convictions thoughtfully reached should not be abandoned.'” (Id.) Finally, Petitioner argues that the trial court improperly instructed the jurors to continue their deliberations after the jurors notified the trial court of a deadlock. (Id., pp. 15 -16.) Despite the fact that only three jurors indicated that continued deliberation might be helpful, Petitioner complains that the trial court instructed the jurors to continue their deliberations. (Id.) Petitioner argues that for the nine jurors, who failed to raise their hand indicating that additional deliberation could be helpful, the trial court's remarks constituted rebuke implying that “some of them were disregarding its previous instruction and using ‘pride or stubbornness.'” (Id., p. 16.) Petitioner notes that in its supplemental charge, the trial court again improperly failed to explain the duty of reasonable dissent. (Id.)

         Based upon the foregoing, the undersigned finds that Petitioner appears to argue that the trial court violated his right to due process in two ways: (1) By continuously reminding the jury of time restraints and forcing deliberations to continuing resulting in a coerced verdict; and (2) By ...


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