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Prophet v. Terry

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

August 19, 2019

RALPH TERRY, Acting Warden, Respondent.



         Pending before the Court is United States Magistrate Judge Michael J. Aloi's Report and Recommendation (“R&R”) concerning the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by pro se Petitioner Antonio Prophet (“Petitioner”). Judge Aloi recommends that the Court grant the Respondent's Motion for Summary Judgment. For the reasons set forth below, the Court adopts the R&R, overrules Petitioner's objections, grants the Motion for Summary Judgment, and denies and dismisses the petition.

         I. BACKGROUND

         In 2012, a jury in the Circuit Court of Berkeley County, West Virginia, convicted Petitioner of two counts of first-degree murder[1] and one count of first-degree arson. ECF No. 13-3 at 4. The jury did not recommend mercy on either of the murder convictions. ECF No. 13-2 at 3. The trial court sentenced him to a determinate term of life without the possibility of parole on each murder conviction and to a determinate term of twenty (20) years on the arson conviction, with all sentences to run consecutively. Id.

         Petitioner appealed his conviction to the Supreme Court of Appeals of West Virginia (“SCAWV”), which affirmed the trial court's conviction. ECF No. 52-15. Meanwhile, he petitioned the Circuit Court of Berkeley County for a writ of habeas corpus, which it summarily dismissed after directing Respondent to answer certain claims. ECF Nos. 13-3, 13-4. Petitioner appealed the summary dismissal to the SCAWV, which denied him relief via Memorandum Decision. ECF No. 13-2.

         Petitioner filed a pro se § 2254 petition in this Court on September 2, 2016. ECF No. 13. Per Judge Aloi's March 28, 2018, Order, the only claims remaining for consideration are Grounds 3- 9, 10 (1)-10 (13), 10 (15)-10 (16), 11, 12 (1)-12 (3), and 13, along with all subparts to each. See ECF No. 73 at 30.

         Ralph Terry, the Respondent and Acting Warden at Mount Olive Correctional Complex (“Respondent”), filed a Motion for Summary Judgment on May 3, 2018, arguing that the petition should be dismissed because Petitioner failed to state a claim upon which relief can be granted. ECF No. 81. Petitioner filed a Response. ECF No. 90. Judge Aloi then entered his R&R, recommending that the Court grant Respondent's Motion for Summary Judgment and deny and dismiss the petition. ECF No. 96.

         On March 6, 2019, Petitioner filed objections to the R&R. ECF No. 98. He makes the following objections:

OBJECTION 1: To certain portions of Judge Aloi's factual findings;
OBJECTION 2: To Judge Aloi's analysis and legal determinations in Grounds 3, 4 (and all sub grounds), 5, 7 (and all sub grounds), 8 (and all sub grounds), 9, 10 (and all sub grounds), 11, 12 (and all sub grounds), and 13;
OBJECTION 3: To Judge Aloi's “grouping” of Petitioner's claims “by type” - specifically as to his Ground 4 claim - and to how Judge Aloi failed to state in his R&R how the prosecutorial remarks challenged by Petitioner in Ground 4 are not post-Miranda silence remarks in violation of Doyle;
OBJECTION 4: To Judge Aloi's deliberate distortion of the record (altering the chronological order of a significant verbal interaction at trial);
OBJECTION 5: To Judge Aloi's misapprehension of Petitioner's Ground 4 (3) claim;
OBJECTION 6: To Judge Aloi's repeated assertion that the petition “completely fails to identify what specific acts the Petitioner is alleging” in his Ground 7 and Ground 8 claims;
OBJECTION 7: To Judge Aloi's cherry-picking of specific acts of misconduct alleged in Petitioner's Ground 7 and Ground 8 claims;
OBJECTION 8: To Judge Aloi's failure to abide by the law regarding the granting of summary judgment; and
OBJECTION 9: To Judge Aloi's current and possible future participation in the matter.

See ECF No. 98.


         When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636 (b) (1) (C). Otherwise, “the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the [parties do] not object.” Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Here, due to the broad scope of Petitioner's objections, the Court will review de novo the merits of all remaining grounds. Plaintiff's Complaint will be liberally construed because he is proceeding pro se. See Estelle v. Gamble, 429 U.S. 97 (1976).

         Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (c). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id. Summary judgment is proper “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).


         Habeas relief is available under 28 U.S.C. § 2254 to state prisoners in “custody in violation of the Constitution or laws or treaties of the United States.”[2] Habeas relief under § 2254 is only appropriate when the state court's adjudication of the claim either (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, ”[3] 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.”[4] 28 U.S.C. § 2254 (d) (1) - (2).

         This Court may grant relief under the “contrary to” clause “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). It may grant relief under the “unreasonable application” clause “if the state court identifies the correct governing legal principal from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 365. Section 2254 also provides that the “State court shall be presumed to be correct” and that “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254 (e) (1).

         A petitioner must exhaust his remedies in the courts of the state before seeking § 2254 review. Id. § 2254 (b). To exhaust his remedies, a federal habeas petitioner must have presented all federal claims, in federal terms, to the highest state court before presenting them for federal habeas review. Picard v. Connor, 404 U.S. 270, 275 (1971). Thus, to exhaust a claim in state court, a petitioner must “expressly raise[] that same federal constitutional claim in state court that he raises in federal court.” Diaz v. Weisner, No. 3:06CV81-1-MU, 2006 WL 2224292, at *11 (W.D. N.C. Aug. 1, 2006).

         Here, Petitioner states that he has exhausted his state remedies because all grounds in the petition have been presented to West Virginia's highest court. ECF No. 13 at 15. Petitioner has alleged seven general types of claims: (A) Prosecutorial Misconduct; (B) Judicial Bias/Misconduct; (C) Insufficient Evidence; (D) Ineffective Assistance of Trial Counsel; (E) Ineffective Assistance of Appellate Counsel; (F) Denial of Meaningful Appellate and Post-Conviction Collateral Review; and (G) Cumulative Error. The Court has sorted the counts based on their “type” and will analyze them under each type's governing law. The Court will examine in turn each ground alleged in the petition that remains for consideration.


         In determining whether a prosecutor's actions during trial warrant habeas relief, “[t]he relevant question is whether the prosecutor's comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Fourth Circuit has established a two-pronged test to apply in answering this question. First, the defendant must show that the prosecutor's remarks were improper. United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998). Second, he must show that the remarks prejudicially affected the defendant's substantial rights so as to deprive him of a fair trial. Id. Several factors influence this determination, and no one factor is dispositive. The Court considers “(1) the degree to which the prosecutor's remarks have a tendency to mislead a jury and prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish guilt of accused; and (4) whether comments were deliberately placed before the jury to divert attention from extraneous matters.” Id. at 299 (citing United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)). It also considers “(5) whether the prosecutor's remarks were invited by improper conduct of defense counsel, and (6) whether curative instructions were given to the jury[.]” Id. (citing United States v. Young, 470 U.S. 1, 12-13 (1985), and United States v. Harrison, 716 F.2d 1050, 1053 (4th Cir. 1983) (internal citations omitted)).

         The Supreme Court of the United States has indicated that “a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether prosecutor's conduct affected the fairness of the trial.” Young, 470 U.S. at 11. Courts have applied the “invited response” or “invited reply” rule, which looks at the remarks within the context of the entire trial to determine whether the prosecutor's behavior amounted to prejudicial error. Id. at 11- 12. Turning to the specific claims alleged as prosecutorial misconduct, the Court finds that none of the prosecutor's alleged actions so infected the trial with unfairness as to make the resulting conviction a denial of due process. Petitioner has not shown that the SCAWV's dismissal of these claims was an unreasonable application of the law or an unreasonable determination of the facts. As discussed below, he is not entitled to § 2254 relief on his prosecutorial misconduct claims.

         Ground 3

         Specifically, Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor knowingly used false testimony from Joseph Medina (“Medina”) to obtain convictions. ECF No. 13 at 10.

         A defendant's right to due process is violated when “the prosecution's case included perjured testimony and ‘the prosecution knew, or should have known, of the perjury.'” Jones v. Seifert, 808 F.Supp.2d 900, 920 (S.D. W.Va. 2011) (citing United States v. Agurs, 427 U.S. 97, 103 (1976)). To obtain relief based on such a violation, a petitioner must “demonstrate in his petition for habeas corpus (1) that a witness made a false statement; (2) that the false statement was material; and (3) that the false testimony was knowingly and intentionally employed by the government in order to obtain a conviction.” Leigh v. United States, No. 3:04CV22, 2005 WL 1334568, at *6 (N.D. W.Va. June 3, 2005) (citing Beasley v. Holland, 649 F.Supp. 561, 566 (S.D. W.Va. 1986)). Importantly, “[m]ere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony.” United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987). “The credibility of witnesses is within the sole province of the jury and is not subject to further judicial scrutiny.” Beasley, 649 F.Supp. at 566.

         Here, the SCAWV found that Petitioner “failed to show that the prosecutor presented false testimony, ” noting that there was “no conclusive evidence that Medina's trial testimony was false.” ECF No. 52-15 at 27. The court acknowledged that there were inconsistencies between Medina's prior statements to police and Medina's testimony at trial but found that the inconsistencies did not amount to a false statement at trial. Id. Petitioner's inconsistent statements could mean that he lied previously and was not lying at trial. Id. The SCAWV noted that “[t]hese are areas which are appropriate for vigorous cross examination, ” and Petitioner's counsel attacked Medina's credibility during cross examination. Id. at 28.

         This Court agrees with the SCAWV. Petitioner has not cited any factual information to support a finding that Medina lied while testifying at trial. As Judge Aloi stated, Petitioner “has not proven that there was any perjury, let alone that ‘the prosecution knew, or should have known of the perjury[.]'” ECF No. 96 at 23 (citing Agurs, 427 U.S. at 103). Inconsistent testimony is not proof of perjury. The comments did not so infect the trial with unfairness so as to deprive Petitioner of a fair trial. The SCAWV's determinations of the facts and application of the law were reasonable as to Ground 3, and Petitioner is not entitled to relief under § 2254.

         Ground 4

         Petitioner alleges that his rights under the 5th, 6th, and 14th Amendments to the United States Constitution were violated when the prosecutor impeached Petitioner's credibility by attacking his post-Miranda silence.

         Ground 4 (1)

         Specifically, Petitioner alleges that his constitutional rights were violated when the prosecutor, during cross examination, repeatedly questioned him regarding his post-Miranda silence and, during closing arguments, argued that the discrepancy between his exculpatory story at trial and his silence at time of arrest gave rise to a legitimate inference that the exculpatory story was fabricated.

         The Supreme Court of the United States held in Miranda v. Arizona that the prosecution may not use statements stemming from custodial interrogations of a suspect unless the prosecution demonstrates that it has used certain procedural safeguards. 384 U.S. 436, 478-79 (1966). To violate Miranda, police must have obtained a statement - without using safeguards - from a suspect while he was (1) in custody and (2) being interrogated.

         If a defendant testifies at trial and tells an exculpatory version of events, the State may not use his post-Miranda silence to impeach him. See Buckner v. Polk, 453 F.3d 195, 208 (4th Cir. 2006). However, there is a difference between post-Miranda silence and pre-Miranda silence. “Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239 (1980). The Jenkins Court held that “impeachment by use of prearrest silence does not violate the Fourteenth Amendment.” Id. at 240. “Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.” Id. at 239.

         Here, at trial, Petitioner testified to an exculpatory version of events. The following includes the relevant portions of the trial transcript during cross examination, some of which was included by Petitioner in his briefing:

Q. And you told us today that you wrote this work of fiction and you've told us this story that you've told us about what happened on the night of the events and that particular story was never told to anyone of law enforcement -
MR. MANFORD: Objection.
Q: - or otherwise.
THE COURT: Hold on. There's an objection.
MR. MANFORD: I may be totally wrong but - can we have a short sidebar?
(Conference at the bench)
MR. MANFORD: I could be wrong but isn't that commenting on prior statements? She's trying to say you didn't tell anybody about that. That's his right until he comes to court.
THE COURT: He can say why he didn't do it, but I think she's entitled to say this is the first time it has come up, yeah.
MR. MANFORD: So I'm not arguing again, but I had this in another case in Morgan County where the prosecutor made a reference to the Defendant never . . .
THE COURT: Exercising his right to silence to the police officer. She can't say you never told it to the police or anything like that. Did you ever tell it to anyone. You can't say when the police got you[, ] you didn't tell them that, did you. This is one of those cases where there could be an exception because he did make contact after the event to Mr. Devonshire[, ] and she could say why didn't you tell him[, ] but you can't - pre-arrest silence is not the same as post-arrest. It's statements to law enforcement that is exercising your right to silence so you can't ask him about anything about law enforcement.
THE COURT: But you can say he contacted Mr. Devonshire after and you didn't tell him things like that because that's not exercising your right to silence.
MR. MANFORD: I agree.
THE COURT: Pre-arrest. Pre-arrest silence is allowed in. Post-arrest silence isn't.
MR. PREZIOSO: After he was arrested.
MR. PREZIOSO: After he was arrested he did - [Lieutenant] Harmison did try to interview him and he asserted his Fifth Amendment right.
THE COURT: All of that stays out. It has to be pre-arrest.
MR. MANFORD: That was two years ago, right. Your Honor, just so we have a time, pre-arrest silence was two years ago.
THE COURT: Unless he made a statement to someone - I mean, if it's - if it's non-law enforcement he made a statement.
MR. MANFORD: Some snitch in the jail, sure.
THE COURT: Or something like that, but pre-arrest silence does not - the Fifth Amendment has not attached -
MR. MANFORD: I agree.
THE COURT: So pre-arrest silence.
MR. MANFORD: You're at your own peril if you talk to someone.
THE COURT: Right. Or someone non-law enforcement outside.
(In open court.)
MS. GAMES-NEELY: (resumed)
Q: You did not tell anyone the story that you told us yesterday prior to taking the stand; is that correct?
A: That's incorrect.
MR. MANFORD: Objection. Move to strike based on the ruling. Unless I totally misunderstood what the Court -
THE COURT: Well, no. What I said - I'm going to allow that and leave it at that. I will overrule the objection based on that.
MS. GAMES-NEELY: (resumed)
Q: Did you, in fact, contact Sidney Devonshire - and I will put this back up on the overhead. The jury has already seen this. I'm going to show you Defendant's Exhibit Number Nine, sir, and ask if you recognize that text message.
THE COURT: It's already in. he's already identified it.
A: Yes, ma'am.
Q: That is the text message that you sent to Sidney Devonshire; is that right?
A: That is correct.
Q: And that text message has what date on it?
A: June 7th, 2010, 7:53 p.m.
A: And on that particular text message, sir, do you describe to him what you've described on that witness stand?
A: No, ma'am.
Q: Did you call Sidney Devonshire and tell Sidney Devonshire what information you had regarding the murder of his daughter and his grandson?
A: No, ma'am.

ECF No. 52-31 at 33-37. The next portion of the transcript, which Petitioner cites in part, is as follows:

Q: And in this instance, you've had two years to make up this story.
A: I didn't make up any story, ma'am.
Q: And you've had two years to review all the discovery, all of the pieces, all of the ...

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