United States District Court, N.D. West Virginia, Clarksburg
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [ECF NO. 96], OVERRULING
PETITIONER'S OBJECTIONS [ECF NO. 98], GRANTING MOTION FOR
SUMMARY JUDGMENT [ECF NO. 81], AND DENYING AND DISMISSING
§ 2254 PETITION [ECF NO. 13]
S. KLEEH, UNITED STATES DISTRICT JUDGE.
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
2012, a jury in the Circuit Court of Berkeley County, West
Virginia, convicted Petitioner of two counts of first-degree
murder 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.
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.
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.
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.
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
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
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.
STANDARD OF REVIEW
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).
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)).
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.” 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, ” 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.” 28 U.S.C. § 2254 (d) (1) - (2).
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).
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).
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.
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)).
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
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.
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.
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.
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.
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.
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.
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.
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 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
MR. MANFORD: I may be totally wrong but -
can we have a short sidebar?
THE COURT: Sure.
(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
MR. MANFORD: Okay.
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
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
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
(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
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
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
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,
Q: And you've had two years to review
all the discovery, all of the pieces, all of the ...