Abdelhaq v. Ames

• Decision Date: 23 November 2022
• Docket Number: Civil Action 3:21-CV-145 (GROH)
• Parties: YASSER ABDELHAQ, Petitioner, v. DONALD F. AMES, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

YASSER ABDELHAQ, Petitioner, v. DONALD F. AMES, Respondent.

Civil Action No. 3:21-CV-145 (GROH)

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

November 23, 2022

REPORT AND RECOMMENDATION

ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

This case was initiated on September 2, 2021, when the Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The Petitioner paid the $5.00 filing fee on September 28, 2021. ECF No. 20.

Accordingly this case is before the undersigned for a report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure (LR PL P) 2, et seq., and 28 U.S.C §§ 1915(e) and 1915(A).

II. FACTUAL AND PROCEDURAL HISTORY

A. State Court Proceedings: Conviction, Sentence, Direct Appeals, and Habeas Corpus Petitions^[1]

Petitioner is currently a state prisoner incarcerated in Mount Olive Correctional

Center in Mount Olive, West Virginia. https://apps.wv.gov/ois/offendersearch/doc. Following the November 1999 killing of Dana Tozar, Petitioner has twice been convicted of her murder in the Circuit Court of Ohio County, West Virginia, and three times appealed his conviction and sentence, and subsequent habeas corpus cases to the Supreme Court of Appeals of West Virginia. In Petitioner's latest appeal to the Supreme Court of Appeals, that court summarized the proceedings through June 2021:

In January of 2000, petitioner was indicted in the Circuit Court of Ohio County on one count of first-degree murder for the stabbing death of Dana Tozar (“the victim”). At a jury trial in August of 2000, petitioner was convicted of first-degree murder and sentenced to a life term of incarceration without the possibility of parole. Petitioner appealed his conviction in State v. Abdelhaq (“Abdelhaq I”), 214 W.Va. 269, 588 S.E.2d 647 (2003), and this Court vacated the conviction due to a defective indictment and remanded the matter. Id. at 274, 588 S.E.2d at 652. Shortly after this Court's decision in Abdelhaq I, petitioner contends that he filed in the circuit court, as a self-represented litigant, a “blue print” outlining his strategy for his second trial. In this “blue print,” petitioner states that he “instructed counsel not to tell the jury he was guilty of murder [in a second trial].”

Petitioner was indicted for a second time on one count of first-degree murder for the murder of the victim and was represented by attorneys Robert G. McCoid and John J Pizzuti. At petitioner's second trial, he admitted to killing the victim and sought a conviction on the lesser-included offense of second-degree murder. Petitioner was again convicted of first-degree murder. In the bifurcated sentencing stage, the jury did not recommend mercy. Accordingly, the circuit court sentenced petitioner to a life term of incarceration without the possibility of parole. Subsequently, petitioner's second appeal to this Court was refused by order entered on May 25, 2005.

In 2006, petitioner filed his first petition for a writ of habeas corpus in the circuit court, raising the following fourteen grounds for relief: (1) Whether petitioner was denied effective assistance of trial counsel; (2) Whether the evidence was insufficient to support a conviction for first-degree murder; (3) Whether the introduction of autopsy photographs was more prejudicial than probative; (4) Whether petitioner was denied a right to a fair sentencing when the circuit court allowed the victim's family to testify during the second phase of the bifurcated trial as to their preference that he be denied mercy; (5) Whether the jury should have been instructed with regard to mitigating factors on which it could determine petitioner's eligibility for parole; (6) Whether the circuit court's refusal to suppress all evidence seized during a warrantless search of the motel room where the crime took place was erroneous; (7) Whether the admission of hearsay testimony was erroneous; (8) Whether the admission of photographs of the victim before her death, i.e. “life photographs,” was erroneous; (9) Whether the circuit court's refusal to admit evidence of the victim's drug use was erroneous; (10) Whether the circuit court's refusal to admit evidence of a witness's past criminal history was erroneous; (11) Whether the inclusion of a jury instruction with regard to “transferred intent” was erroneous; (12) Whether the circuit court's failure to include a jury instruction defining the term “spontaneous,” as it related to the issue of deliberation, was erroneous; (13) Whether the circuit court's jury instruction, instructing the jury that the use of a deadly weapon allows an inference of malice and intent to kill, was incomplete; and (14) Whether the circuit court's refusal to limit petitioner's cross-examination of a State's witness with regard to specific intent was erroneous. The circuit court denied the petition by order entered on March 22, 2006, without holding a hearing.

Petitioner appealed the circuit court's March 22, 2006, order denying his first habeas petition on May 3, 2006. By order entered on December 6, 2006, this Court “grant[ed] [petitioner's] petition for appeal.” The Court did not reverse the March 22, 2006, order, but remanded the case to the circuit court “for the holding of an omnibus habeas corpus hearing on the issue of ineffective assistance of [trial] counsel.” Upon remand, the parties litigated whether petitioner was barred from raising every issue set forth in the habeas petition except for ineffective assistance of trial counsel. Following a September 11, 2015, hearing, by order entered on October 19, 2015, the circuit court ruled that petitioner was barred “from raising any claim other than his claim for ineffective assistance of [trial] counsel,” finding that petitioner misinterpreted this Court's decision in Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), setting forth principles governing the application of the doctrine of res judicata in habeas cases.

With regard to ineffective assistance of trial counsel, petitioner and both trial counsels testified at an August 2, 2016, omnibus hearing. Petitioner asserts that the issue of his strategy “blue print” for the second trial “was never settled” because “counsel state[d] they did not have a copy of the trial strategy.” Nevertheless, Mr. McCoid testified unequivocally that petitioner understood “the full ramifications” of counsels' trial strategy of admitting that he killed the victim and asking for a conviction of second-degree murder and gave his consent. At several points during his testimony, Mr. McCoid addressed discussions the attorneys had with petitioner concerning the trial strategy, petitioner's understanding of the risks and benefits of such a strategy, and petitioner's consent to pursuing it. Having the benefit of seeing the State's theory of the case during the first trial, Mr. McCoid testified that they reevaluated the trial strategy since this “was not a case about whether [petitioner] had taken [the victim's] life,” but was rather “about what his mental status was at the time that he did so.” Mr. McCoid relied on portions of his opening statement where he admitted that petitioner killed the victim, but urged the jury to convict petitioner of second-degree murder due to the absence of premeditation. Based upon the opening, Mr. McCoid indicated during the omnibus hearing that

[i]t is inconceivable that I would have given an opening statement in a first-degree murder case asking the jury to convict my client of second-degree murder without hav[ing] closely consulted with my client, discussed the minutia associated with that decision and obtained the full consent of my client in ... advancing that defense.

Thereafter, by order entered on December 29, 2016, the circuit court rejected petitioner's ineffective assistance claim and denied the habeas petition.

Petitioner appealed the circuit court's December 29, 2016, denial of the habeas petition to this Court. However, petitioner did not challenge the court's October 19, 2015, order allowing him to raise only ineffective assistance of trial counsel at the omnibus hearing. In Abdelhaq v. Terry (“Abdelhaq II”), No. 17-0078, 2018 WL 6131283 (W Va. November 21, 2018) (memorandum decision), this Court affirmed the circuit court's denial of the habeas petition. Relevant here, the Court found that “[a]side from [petitioner's] unsupported claims that he never agreed to the strategy to admit culpability and seek a second-degree murder conviction, the evidence obtained at the omnibus hearing overwhelmingly establishes that petitioner's trial counsel advanced this strategy with petitioner's consent and support.” Id. at *3. Petitioner subsequently filed a petition for rehearing which the Court refused by order entered on March 7, 2019. On March 15, 2019, this Court issued its mandate, and the decision in Abdelhaq II became final.

Petitioner filed his second habeas petition in the circuit court on August 12, 2019. In the habeas petition, petitioner argued that the circuit court erred in its October 19, 2015, order in Abdelhaq II by allowing him to raise only ineffective assistance of trial counsel at the omnibus hearing. Petitioner further argued that habeas counsel in Abdelhaq II was ineffective in failing to adequately argue to the circuit court that none of the fourteen issues set forth in the first habeas petition were adjudicated prior to the August 2, 2016, omnibus hearing. Accordingly, petitioner reasserted every issue from the first habeas petition in his second habeas petition. With regard to ineffective assistance of trial counsel, petitioner argued that the United States Supreme Court's decision in McCoy v. Louisiana, 138 S.Ct. 1500 (2018), represented a change in the

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