United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge
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
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.
factual background of this case is taken from Flack's
direct appeal. See State v. Flack, 753 S.E.2d 761 (
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
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
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 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.
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.
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).
Standard of Review
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
(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.
`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)).
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. §
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).
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.
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).
raised the confrontation clause issue during his direct
appeal. In rejecting this claim, the Supreme Court ...