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Flack v. Ames

United States District Court, S.D. West Virginia, Bluefield

September 30, 2019

BRANDON FLACK, Plaintiff,
v.
DONNIE AMES, Superintendent, Mount Olive Correctional Complex, Defendant.

          MEMORANDUM OPINION AND ORDER

          David A. Faber, Senior United States District Judge

         Pending before the court is plaintiff's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. By Standing Order, the action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of findings of fact and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted his Findings and Recommendation (“PF&R”) to the court on August 15, 2019, in which he recommended that this court deny plaintiff's motion for summary judgment, deny plaintiff's motion for stay and abeyance, grant defendant's motion for summary judgment, deny plaintiff's petition under 28 U.S.C. § 2254, and remove the matter from the court's docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days plus three mailing days in which to file any objections to Magistrate Judge Tinsley's Findings and Recommendations. After receiving an extension of the deadline for filing objections, on September 17, 2019, plaintiff filed timely objections to Magistrate Judge Tinsley's Findings and Recommendation. With respect to those objections, the court has conducted a de novo review.

         I. Background

         The factual background of this case is taken from Flack's direct appeal. See State v. Flack, 753 S.E.2d 761 ( W.Va. 2013).

In late January 2011, the defendant [Flack] and three other men devised a plan to burglarize the home of the defendant's uncle. On the evening of the planned burglary the four men gathered ski masks and two handguns, and then drove from their homes in Pulaski, Virginia, to Bluefield, West Virginia, where the uncle's house was located. Arriving shortly after midnight on January 29, 2011, the defendant and two of his accomplices donned the ski masks, obscuring their faces, and approached the back of the house. The fourth man remained in the car. Observing that lights were on in the house, one of the men knocked on the back door.
Inside the house were three seventeen-year-old boys, including Matthew Flack, a second cousin of the defendant's. Hearing the knock on the back door, Matthew peered through a curtain. Seeing the three masked men standing at the back door, Matthew ran to the second floor of the house where he retrieved a handgun.
As Matthew ran up the stairs, the defendant kicked in the back door. The three men then entered the house. The defendant went up the stairs and began struggling with Matthew. As Matthew and the defendant struggled, Jasman Montgomery, who was one of the defendant's accomplices, ran up the stairs, pulled out a pistol and shot Matthew in the face.
Although mortally wounded, Matthew shot and wounded the defendant. As Matthew lay on the floor dying, the defendant and his two accomplices ran out of the house and fled from the scene.
The three men took the defendant, who was bleeding heavily, to the Bluefield Regional Medical Center. In an effort to explain the shooting, the men concocted a story that the defendant had been shot in a drive-by-shooting. As the defendant received treatment, the men returned to the car where they waited in the parking lot. Police officers arrived at the hospital to investigate and went to the parking lot to talk with the three men. Noticing blood on the inside and outside of the car, the officers asked for and were given permission to search the vehicle. The officers found two handguns and ski masks in the car.
The defendant was indicted for first degree murder, burglary, first degree robbery and conspiracy to commit first degree murder. The defendant pled not guilty and his case proceeded to trial. . . .
At trial, the State's witnesses included Jasman Montgomery (the accomplice who shot and killed Matthew Flack) and Dr. James Kaplan, the State Medical Examiner.
[Jasman] Montgomery pled guilty to first degree murder and received a life sentence with the possibility of parole after serving fifteen years. As part of his plea agreement, Montgomery testified for the State and testified about his guilty plea before the jury. Further, he discussed the planning of the robbery, the forced entry into the Flack residence, his shooting of Matthew Flack, and testified about driving the defendant to the hospital. At no time during the trial did defense counsel request that the jury be given a limiting or cautionary instruction regarding the consideration which the jurors could--or could not--give to Montgomery's testimony that he had pled guilty to murdering Mr. Flack.
Dr. James Kaplan, who did not conduct the autopsy of Matthew Flack, testified that Mr. Flack died as a result of a gunshot wound. The autopsy report was not introduced into evidence, and the pathologist who prepared the report did not testify. Defense counsel did not object to Dr. Kaplan's testimony.

Id. at 763-64.

         On April 26, 2012, following a three-day jury trial in the Circuit Court of Mercer County, West Virginia, Flack was convicted of first degree murder, burglary, robbery, and conspiracy. See Flack v. Ballard, 803 S.E.2d 536, 542 ( W.Va. 2017). On June 7, 2012, the trial court denied Flack's motion for a new trial. See id. However, because the State had pursued the murder charge based on a felony murder theory, the trial court merged the counts of first degree murder and burglary, resulting in dismissal of the burglary conviction. See id.

         Flack was sentenced to life with mercy for the first degree murder offense, forty years for the first degree robbery offense, and an indeterminate term of one to five years for the conspiracy offense, with all sentences to run consecutively. Eventually, the sentence was amended such that the forty-year sentence on the robbery convction was ordered to run concurrently with the first degree murder conviction. PF&R at p. 16; ECF No. 13-27 (Ex. 10).

         II. Standard of Review

         Under 28 U.S.C. § 2254, Flack is entitled to federal habeas relief only if he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that when the issues raised in a § 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.

         “This `is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Hope v. Cartledge, 857 F.3d 518, 523 (4th Cir. 2017) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted)).

         In Williams v. Taylor, 529 U.S. 362 (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. 362, 412-13 (2000). 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. In determining whether the State court's decision was contrary to, or was an unreasonable application of, Supreme Court precedent, all factual determinations by the State court are entitled to a presumption of correctness. See 28 U.S.C. § 2254(e).

         A state court's decision is “contrary to” clearly established federal law when it “applies a rule that contradicts the governing law set forth” by the United States Supreme Court, or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405-06. A state court's decision involves an “unreasonable application” of clearly established federal law under § 2254(d)(1) “if the state court identifies the correct governing legal rule from . . . [the] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407. “The state court's application of clearly established federal law must be ‘objectively unreasonable,' and ‘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.'” Robinson v. Polk, 438 F.3d 350, 355 (4th Cir. 2006) (quoting Williams, 529 U.S. at 411). Moreover, when “assessing the reasonableness of the state court's application of federal law, the federal courts are to review the result that the state court reached, not whether [its decision] [was] well reasoned.” Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir. 2003) (quotation marks omitted).

         III. Objections

         A. Confrontation Clause

         Flack's first objection concerns the PF&R's findings and conclusions regarding the testimony of Dr. James Kaplan. Dr. Kaplan testified at trial that Matthew Flack died as the result of a gunshot wound but did not prepare the autopsy report so stating. According to Flack, this violated his Sixth Amendment right to confront the witness against him who actually performed the autopsy.

         The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” U.S. Const. amend. VI. In Crawford v. Washington, the Court held that the Sixth Amendment Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004).

         Flack raised the confrontation clause issue during his direct appeal. In rejecting this claim, the Supreme Court ...


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