Boothe v. Ballard, CIVIL ACTION NO. 2:14-cv-25165

• Decision Date: 31 March 2016
• Docket Number: CIVIL ACTION NO. 2:14-cv-25165
• Parties: SCOTTY E. BOOTHE, Petitioner, v. DAVID BALLARD, Respondent.
• Court: U.S. District Court — Southern District of West Virginia

SCOTTY E. BOOTHE, Petitioner, v. DAVID BALLARD, Respondent.

CIVIL ACTION NO. 2:14-cv-25165

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

March 31, 2016

MEMORANDUM OPINION AND ORDER

Pending before the Court are Petitioner's¹ pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), (ECF No. 2), Petitioner's Motion for an Evidentiary Hearing, Appointment of Counsel and Memorandum in Support Thereof (the "Motion for Hearing and Appointment of Counsel"), (ECF No. 15), and Respondent's Motion for Summary Judgment, (ECF No. 10). On April 27, 2015, Magistrate Judge Cheryl A. Eifert entered proposed findings of fact and recommendations for disposition (the "PF&R"), in which she denied the Motion for Hearing and Appointment of Counsel and recommended that the Court grant Respondent's Motion for Summary Judgment, deny the Petition, and dismiss this matter. (ECF No. 21.) Petitioner filed timely objections to the PF&R on May 12, 2015 (the "Objections"). (ECF No. 22.)

For the reasons provided herein, the Court OVERRULES the Objections, (ECF No. 22), ADOPTS the PF&R, (ECF No. 21), to the extent it is consistent with this Memorandum Opinion and Order, GRANTS Respondent's Motion for Summary Judgment, (ECF No. 10), DENIES the Petition, (ECF No. 2), in its entirety, AFFIRMS the Magistrate Judge's denial of Petitioner's Motion for Hearing and Appointment of Counsel, (ECF No. 15), and DISMISSES this case WITH PREJUDICE.

I. Background

This case involves a collateral attack by a state prisoner on his conviction pursuant to 28 U.S.C. § 2254. The extensive pertinent background for this matter is as follows.

A. Initial State Proceedings and Direct Appeal

On September 9, 2008, Petitioner was indicted in Fayette County, West Virginia on four counts: (1) Count One—sexual assault in the first degree by unlawfully and feloniously penetrating the anus of the victim ("D.B.") "with his penis" in violation of West Virginia Code § 61-8B-3; (2) Count Two—sexual assault in the first degree by unlawfully and feloniously penetrating the anus of D.B. "with the handle of a knife" in violation of West Virginia Code § 61-8B-3; (3) Count Three—sexual abuse in the first degree by unlawfully and feloniously "subject[ing]" D.B. "to sexual contact by intentionally touching his penis with his hand . . . for his sexual gratification" in violation of West Virginia Code § 61-8B-7(a)(3); and (4) Count Four—sexual abuse in the first degree by unlawfully and feloniously "subject[ing]" D.B. "to sexual contact by placing [D.B.'s] hand on his penis . . . for his sexual gratification" in violation of West Virginia Code § 61-8B-7(a)(3). (ECF No. 10, Ex. 1 at 2-3.) The indictment alleged that these acts occurred between January 2007 and September 2007, (id. at 2), when D.B. was five years old and Petitioner was thirty-two years old, (see ECF No. 10, Ex. 12 at 212 (providing the testimony of Detective Glen Chapman that D.B.'s date of birth is October 17, 2001 and Petitioner's date of birth is December 8, 1974)).

"Petitioner's trial took place on October 20-21, 2009." (Id., Ex. 11 at 173.) Petitioner's trial counsel included "Gina Tennen from the Liberty Law Group in California," (id.), and R. Lavoyd Morgan from Lewisburg, West Virginia, (ECF No. 10, Ex. 12 at 2). Following jury selection, the trial court gave initial instructions to the jury wherein he stated, in pertinent part, that "the way or the manner that [the trial judge] rule[s] on any . . . matters must never ever be taken by any of you as any indication at all that [the trial judge] favor[s] one side or the other in this case, because [the trial judge] do[es] not." (Id. at 118-19.) The trial court further instructed the jury that, "[a]s presiding [j]udge throughout this entire trial at all times [the trial judge] stand[s] completely neutral, impartial, and indifferent as between the State of West Virginia and [Petitioner]." (Id. at 119.)

During Petitioner's opening statement, Mr. Morgan asserted that "there are no medical reports supporting any physical abuse of this child, there are no medical reports substantiating any trauma to this child, . . . psychological or physical . . . . [y]ou're not going to hear any of that." (Id. at 138.) Mr. Morgan also argued that "[t]here is no physical evidence, no blood evidence, no semen evidence, no medical evidence [and] no scientific evidence." (Id.) Mr. Morgan further asserted that the jury would "hear from a doctor who is a board certified forensic psychiatrist . . . and a board certified neuropsychiatrist" who would testify that Petitioner "does not exhibit any characteristics of a pedophile." (Id. at 139.) Finally, Mr. Morgan argued that the State was "going to try to convince [the jury] that [Petitioner] did these horrible things to this little boy based on what the little boy said," (id. at 140), and that D.B.'s "stories . . . changed dramatically each time he was interviewed," (id. at 138).

The prosecution's first witness was D.B.'s foster parent—Robbie McGee. Mr. McGee testified that he spoke with D.B. after he found D.B. behind another child performing "a humping motion." (Id. at 143-44.) According to Mr. McGee, D.B. told him "that when he was at his ma-ma's house a man played with his weenie and had him play with the man's weenie" and the man "had a knife and was playing in the back of him." (Id.) Mr. McGee testified that D.B. named Petitioner as the man who performed these acts and that he did not tell his mother or father about the incident because Petitioner was "going to kill them." (Id. at 145-46.) Mr. McGee also testified that he and D.B.'s other foster parent then immediately called a 1-800 number they received as foster parents "in case of emergencies" and reported D.B.'s statements. (Id. at 146.)

On cross-examination, Mr. McGee testified that D.B. was "confused" when Mr. McGee "stopped" D.B. from performing the humping motion on another child because "he didn't know it was right or it was wrong." (Id. at 152.) Mr. McGee also testified that D.B. was "confused why [Mr. McGee] stopped [D.B.]" and "was still confused until [they] talked about it." (Id.)

The state next called D.B. who was eight years old at the time of trial. (Id. at 155.) D.B. testified that Petitioner entered his grandmother's house while his grandmother and brother were asleep and his mother was at a store. (Id. at 160-61.) D.B. testified that Petitioner then "picked [D.B.] up," "ran outside," and "[w]ent down to the clubhouse." (Id. at 161.) D.B. testified that Petitioner placed his "weiner" in D.B.'s "butt" and "humped" him. (Id. at 162.) D.B. further testified that Petitioner also placed "[t]he handle and the sharp part" of a brown "pocket knife" in his "butt." (Id. at 163-64.) D.B. next testified that he saw "white stuff" on Petitioner's "weiner" after D.B. "touched [Petitioner] with [his] hand" on Petitioner's "weiner." (Id. at 164-65.) D.B. testified that he ran inside his grandmother's house after the incident and did not "tell . . . anybody about what happened" because Petitioner "said he would kill [D.B.'s] mom and dad." (Id. at 166-67.) Finally, D.B. testified that he told his foster parents—"Yvonne and Robbie McGee"—about the incident after D.B. "[h]umped" another child. (Id. at 168.)

On cross-examination by Ms. Tennen, D.B. testified that he recalled telling an individual named Toni Householder that Petitioner "did this to [him] 20 times." (Id. at 175.) However, D.B. later testified that he did not recall telling this to "Toni." (Id. at 190.) D.B. also testified that he recalled telling "Angela that this happened one time." (Id. at 190.) Additionally, D.B. testified that he "only saw the person that did this to [him] one time," but he saw Petitioner "more than one time at . . . [his] grandmother's house." (Id. at 181.)

D.B. also testified that the assault occurred "in an attic of the clubhouse." (Id. at 177.) D.B. described the "attic" as having "a concrete floor" and "brick walls." (Id. at 197.)

D.B. further testified on cross-examination that he recalled telling Detective Chapman that he was "only kind of sure" that the person he identified from a photo array "looked like" Petitioner "because the man who did this to [D.B.] had a mustache." (Id. at 179.) D.B. also testified that he recalled telling Detective Chapman and "Angela" that he was standing "straight up" when the Petitioner "humped" him and "stuck a knife" in D.B.'s rectum and that Petitioner "hump[ed]" him and stuck "a knife up [his] butt at the same time." (Id. at 183.) D.B. testified that he recalled saying that "the knife stayed the same color and the same size the entire time" and that he "saw [Petitioner] put it inside of [D.B.'s] butt." (Id. at 185-86.) D.B. also testified that, while the assault "hurt[]," he did not bleed "all over the . . . floor" or "in [his] underwear," he did not have "problems going to the bathroom" or "walking afterwards," he did not "go in an ambulance" or "have surgery on [his] butt," and he did not "cry[] hysterically." (Id. at 184-85.)

The trial court interrupted Ms. Tennen's cross-examination of D.B. on numerous separate occasions. (See, e.g., id. at 177, 181-82, 187-88, 191-95, 198, 200-01.) The West Virginia Supreme Court of Appeals (the "WVSCA") later noted that the trial court "interrupted Ms. Tennen sixty-seven times during her cross-examination of D.B." Boothe v. Ballard, No. 13-0740, 2014 WL 2782127, at *5 (W. Va. June 19, 2014).

The prosecution's third and final witness was Detective Glen A. Chapman, II. Detective Chapman testified that he interviewed D.B. on May 21, 2008. (Id. at 206.) According to Detective Chapman, D.B. told him during this interview that Petitioner "picked [D.B.] up out of the living room of his grandma's residence," "took [D.B.] to Uncle Paul's clubhouse," "put his penis in [D.B.'s] rectum as well as the knife," "touched [D.B.'s] penis in a back and...