Ault v. Waid
| Decision Date | 16 September 2009 |
| Docket Number | Civil Action No. 2:07cv88. |
| Citation | 654 F.Supp.2d 465 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | Stoney W. AULT, Petitioner, v. Teresa WAID, Warden, Respondent. |
Stoney W. Ault, St. Mary's, WV, pro se.
Robert D. Goldberg, Attorney General's Office, Charleston, WV, for Respondent.
It will be recalled that on April 8, 2009, Magistrate Judge Kaull filed his Report and Recommendation, wherein the Petitioner was directed, in accordance with 28 U.S.C. § 636(b)(1), to file with the Clerk of Court any written objections within ten (10) days after being served with a copy of the Report and Recommendation. On June 8, 2009, the Court, after having granted the Petitioner an extension of time within which to file his objections, received Petitioner's objections.
Upon examination of the report from the Magistrate Judge, it appears to the Court that all matters raised and suggested by Magistrate Judge Kaull in his Report and Recommendation are appropriate. Upon examination of the report from the Magistrate Judge, it appears to the Court that the issues raised by the Petitioner in his Petition For Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, wherein Petitioner alleges several state trial court errors during the trial leading to his conviction, were thoroughly considered by Magistrate Judge Kaull in his Report and Recommendation, as were the Respondent's Motion for Summary Judgment and the Petitioner's response thereto. Moreover, the Court, upon an independent de novo consideration of all matters now before it, is of the opinion that the Report and Recommendation accurately reflects the law applicable to the facts and circumstances before the Court in this action. Furthermore, upon consideration of the Petitioner's objections, it appears to the Court that the Petitioner has not raised any issues that were not thoroughly considered and accurately addressed by Magistrate Judge Kaull in his Report and Recommendation. Therefore, it is
ORDERED that Magistrate Judge Kaull's Report and Recommendation be, and the same hereby is, accepted in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is hereby
ORDERED that Respondent's Motion for Summary Judgment (docket # 25) be, and the same hereby is, GRANTED. It is further ORDERED that Stoney Ault's Petition in this matter be, and the same hereby is, DENIED, DISMISSED WITH PREJUDICE and STRICKEN from the docket of this Court. It is further
ORDERED that the Clerk shall enter judgment for the Respondent. It is further
ORDERED that, if Petitioner should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4, Federal Rules of Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, Petitioner may, in accordance with the provisions of Rule 24(a), Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis from the United States Court of Appeals for the Fourth Circuit.
This § 2254 was transferred from the Southern District of West Virginia on October 30, 2007. It was received by this Court on November 1, 2007.
On December 21, 2007, the respondent was directed to file a response to the petition on the limited issue of timeliness. The respondent filed her answer on January 17, 2008.
Because the respondent provided sufficient evidence to verify the timeliness of the petition, on August 25, 2008, the respondent was directed to show cause why the petition should not be granted.
On September 9, 2008, the petitioner was granted permission to supplement his petition. As a result, the respondent was given additional time to review the supplement and file a response.
The respondent filed a Motion for Summary Judgment and Memorandum in Support on November 5, 2008. Because the petitioner is proceeding pro se, the Court issued a Roseboro Notice on November 7, 2008, advising the petitioner of his right to file responsive material.
The petitioner filed his response on December 8, 2008.
On November 14, 2000, the petitioner was indicted by the Circuit Court of Grant County, West Virginia, of three counts Sexual Assault in the First Degree in violation of W.Va.Code § 61-8B-3, and two counts of Sexual Abuse by a Parent, Guardian or Custodian in violation of W.Va.Code § 61-8D-5(a). Resp't Ex. 1.
The case against the petitioner proceeded to trial on June 3, 2002. Resp't. Ex. 8. On June 4, 2002, a Grant County petit jury found the petitioner guilty of First Degree Sexual Abuse (a lesser included offense of Count One) and guilty of count four, Sexual Abuse by a Custodian. Id. at 346. The petitioner was acquitted on counts two, three and five. Resp't Ex. 2.1
On October 8, 2002, the petitioner was sentenced to one to five years imprisonment on Count One, and ten to twenty years on Count 4, sentences to run concurrent. Resp't Ex. 3.
On April 21, 2003, the petitioner appealed his conviction and sentence to the West Virginia Supreme Court of Appeals ("WVSCA"). Resp't Ex. 4. On appeal, the petitioner asserted the following assignments of error:
(1) the trial court misapplied the Rape Shield Law, W.Va.Code § 61-8b-11(b);
(2) the trial court erred in allowing the child victim to testify using two-way television in a manner that did not adhere to the State statutory provisions for such testimony;
(3) the conviction cannot stand as the child victim's uncorroborated testimony is inherently incredible;
(4) the trial court erred in denying the defendant's Rule 29 motion;
(5) The trial court erred in failing to give a jury instruction proffered by the defendant; and
(6) the trial court erred by giving a lesser included offense instruction for First Degree Sexual Assault.
Petitioners' direct appeal was refused on October 2, 2003. Id.
The petitioner filed a pro se state habeas petition with the Circuit Court of Grant County on June 17, 2005. Resp. Ex. 5. In his state habeas petition, the petitioner asserted the following grounds for relief:
(1) the trial court misapplied the Rape Shield Law to exclude evidence of the victim's previous sexual experience;
(2) the trial court erred by not following the statutory procedures for using closed-circuit television testimony;
(3) the trial court erred in admitting the victim's uncorroborated testimony because it was inherently unreliable;
(4) the trial court erred by denying the petitioner's Rule 29 motion for acquittal;
(5) the trial court erred by failing to give the jury a Payne instruction;
(6) the trial court erred by instructing the jury on sexual abuse, a lesser included offense of sexual assault, and allowing the jury to convict him of the lesser offense;
(7) he was denied his constitutional right to a speedy trial;
(8) he was denied a fair trial due to prosecutorial misconduct;
(9) the trial court erred by having improper communications with the jury (10) he was denied counsel at his preliminary hearing;
(11) the trial court violated his constitutional right against double jeopardy;
(12) the trial court erred by being influenced by judicial bias during his sentencing and by allowing impermissible considerations to be included in his presentence report;
(13) the trial court erred by failing to require the State to prove that he was custodian for the purpose of the crime of sexual abuse by a custodian;
(14) the trial court erred by allowing a biased juror to remain on the jury;
(15) the trial court erred in allowing the jury to consider improper information about his criminal record;
(16) he was denied his constitutional right to freedom of speech because his girlfriend was not allowed to park in the Court parking lot;
(17) he was denied his constitutional right to effective assistance of counsel; and
(18) even if none of the above errors alone suffices to overturn his conviction, the cumulative error from the trial does.
Resp't Ex. 5; Ex. 6 at 161-162.
The state court held an omnibus evidentiary hearing on August 3, 2006. Resp't Amd. Ex. 6 (dckt. 38) at 158. In a ninety-one page order entered on August 10, 2006, the state court denied the petitioner's state habeas petition. Id. at 246. The petitioner filed an appeal of that decision to the WVSCA on February 26, 2007. Resp't Ex. 7. The WVSCA refused the petitioner's appeal on September 11, 2007. Id.
In his federal habeas petition, the petitioner asserts the following grounds for relief:
(1) the trial court erred by giving an instruction on sexual abuse, a lesser included offense, when the victim's testimony did not support anything other than the greater offense of sexual assault, which offense the petitioner denied committing;
(2) he was denied his constitutional right to effective assistance of trial counsel;
(3) the trial court denied him due process of law by allowing his prior criminal record to be viewed by the jury;
(4) the trial court abused its discretion by blindly and mechanically applying the Rape Shield Law;
(5) the trial court erred in allowing the child victim to testify using two-way television in the manner done;
(6) the victim's testimony was uncorroborated and inherently incredible;
(7) the trial court erred in denying his Rule 29 motion for judgment of acquittal;
(8) the trial court erred in failing to give a jury instruction proffered by the defendant;
(9) the trial court erred by giving the...
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