Bouie v. Ames

• Decision Date: 10 March 2023
• Docket Number: Civil Action 3:21-CV-159 (GROH)
• Parties: MARTINSBURG DARNELL CARLTON BOUIE, Petitioner, v. DONNIE AMES, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

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MARTINSBURG DARNELL CARLTON BOUIE, Petitioner, v. DONNIE AMES, Respondent.

Civil Action No. 3:21-CV-159 (GROH)

United States District Court, N.D. West Virginia

March 10, 2023

SECOND REPORT AND RECOMMENDATION

ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

This case was initiated on September 29, 2021, when the Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the Southern District of West Virginia, case number 2:21-CV-543. ECF No 2.^[1] On October 4, 2021, the case was transferred to this district. ECF Nos. 5, 6. Petitioner paid the $5.00 filing fee on November 16, 2021. ECF No. 13. Petitioner is currently an inmate at the Mount Olive Correctional Complex in Mount Olive, West Virginia, whose next parole hearing is October 5 2028.^[2]

A report and recommendation was filed, but the District Court declined to adopt the same, and recommitted this matter to the undersigned for a second 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). ECF Nos. 39, 42.

II. FACTUAL AND PROCEDURAL HISTORY A. Petitioner's State Conviction, Sentence and Direct Appeal

1. Conviction and Sentence in Harrison County Circuit Court

On May 7, 2013, Petitioner was charged in Harrison County, West Virginia Circuit Court in an indictment returned in case number 13-F-76-3. He was charged in Count One with first degree murder, and in Count Two with conspiracy to commit burglary. ECF No. 24-1, at 1, Docket Entry 1.

On March 21, 2014, a Harrison County jury found Petitioner guilty of both counts of the indictment. ECF Nos. 24-6 at 90; 24-7 at 3 - 4. Petitioner was sentenced on May 16, 2014, to consecutive terms of: (1) life with a recommendation of mercy for Count 1; and (2) to not less than one nor more than five years for Count 2.^[3] ECF No. 24-8.

2. Appeal to the West Virginia Supreme Court of Appeals

Petitioner filed an appeal in the West Virginia Supreme Court of Appeals in that court's docket-number 14-0639. ECF Nos. 2 at 2; 2-1; State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606 (2015). Petitioner raised five grounds in his appeal and alleged reversible error because the circuit court: (1) permitted the admission of the co-defendant's confession to a third party; (2) permitted the admission of statements allegedly made by Petitioner to the investigating officer; (3) permitted the admission of the Petitioner's jail phone calls; (4) permitted the admission of exemplar footwear evidence and attendant lay opinion testimony of the investigating officer; and (5) denied Petitioner's Motion for Judgment of Acquittal and Motion for New Trial based on Petitioner's claim of insufficiency of evidence. ECF No. 2 at 2; 235 W.Va. at 716 - 723, 776 S.E.2d at 613 - 620. By opinion decided June 16, 2015, the West Virginia Supreme Court of Appeals affirmed the circuit court's judgment. State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606 (2015).

B. Petitioner's State Habeas Corpus Petitions

1. Habeas Petition filed in Harrison County Circuit Court

Petitioner, acting pro se, sought Habeas Corpus relief in Harrison County, West Virginia, Circuit Court case number 15-C-433, filed on October 27, 2015. ECF No. 24-15 at 6. The petition was amended by counsel on August 9, 2018. Id. at 7. The amended petition alleged six grounds for relief:

(1) Prejudicial pre-trial publicity;

(2) Ineffective assistance of counsel;

(3) Constitutional errors in evidentiary rulings;

(4) Instructions to the jury;

(5) Sufficiency of evidence; and

(6) Question of actual guilt.

Id. at 5. The circuit court denied Petitioner relief by order entered on July 31, 2020. ECF No. 24-15. The order states that “[t]he Court has concluded that the hearing conducted in this matter was an Omnibus Hearing. Therefore, the Petitioner has waived and is prevented from asserting any further grounds in a future Petition for Writ of Habeas Corpus.” Id. at 18. 2. Appeal to West Virginia Supreme Court of Appeals

Petitioner appealed the denial of habeas relief in the circuit court to the Supreme Court of Appeals of West Virginia. ECF No. 24-16. On appeal, the Petitioner asserted that the circuit court erred in denying his habeas petition, asserting six claims for relief. Id. at 2. Five of those claims asserted that Petitioner received ineffective assistance of counsel as related to counsel's failure to: (1) seek a change of venue based on pretrial publicity [Id. at 11]; (2) investigate grand jury testimony [Id. at 13]; (3) impeach a state witness [Id. at 14]; (4) investigate an alibi [Id. at 15]; and (5) call rebuttal expert witnesses [Id. at 16]. Plaintiff's sixth claim was that the trial court gave improper jury instructions. Id. at 17.

By unpublished memorandum decision issued August 27, 2021, the Supreme Court of Appeals affirmed the July 31, 2020, order of Harrison County Circuit Court which denied Petitioner habeas corpus relief. See Bouie v. Ames No. 20-0660, 2021 WL 3833862 (W.Va. August 27, 2021).

C. Instant Federal Habeas Petition

In his § 2254 petition filed herein on September 29, 2021, Petitioner articulates four grounds for relief. ECF No. 2. However, a review of those claims shows that claims 3 and 4 contain subparts so that Petitioner actually raises eight grounds for relief:

(1) Ground 1. Petitioner's right to confrontation under the Sixth Amendment was violated by the trial court when it admitted his co-defendant's confession [ECF No. 2 at 6]; (2) Ground 2. Petitioner's Rights under the Fifth and Sixth Amendment were violated when the trial court admitted Petitioner's alleged statements made to the investigating officer [Id. at 8];

(3) Ground 3(a). Petitioner's due process rights under the Sixth Amendment were violated when the trial court admitted exemplar footwear evidence [Id. at 10];

(4) Ground (3)(b). Petitioner's due process rights under the Sixth Amendment were violated when the trial court admitted lay opinion testimony of the investigating officer regarding the exemplar shoes in violation of the rules of evidence [Id.];

(5) Ground 4(a). Petitioner's due process rights under the Sixth Amendment were violated when his attorneys provided ineffective assistance of counsel by failing to move for a change of venue based upon prejudicial pre-trial publicity due to the lack of adequate investigation of the issue by trial counsel [Id. at 12];

(6) Ground 4(b). Petitioner's counsel was ineffective when counsel failed to impeach state witness Aaron Carey [Id. at 12 - 13];

(7) Ground 4(c). Petitioner's counsel was ineffective when counsel failed to investigate an alibi [Id. at 13]; and

(8) Ground 4(d). Petitioner's counsel was ineffective when counsel failed to call rebuttal expert witness [Id. 13 - 14].

Petitioner requested that the Court remand this case to the Circuit Court of Harrison County, West Virginia, for a new trial. Id. at 18. Further, Petitioner requested that should he be denied substantive relief, that the Court issue a Certificate of Appealability. Id.

Respondent filed a motion to dismiss and for summary judgment, along with a memorandum in support and multiple exhibits, on March 31, 2022. ECF Nos. 23, 24, 21-1 through 24-17, 25. In his memorandum, Respondent argues that Petitioner is not entitled to relief because: (1) when Petitioner's co-defendant, Mr. Payne, confessed to Mr. Carey, the confession was non-testimonial in nature, thus the trial court's admission of the confession did not violate Petitioner's right to confrontation under the Sixth Amendment [ECF No. 25 at 10 - 12]; (2) Petitioner's right to counsel under the Fifth and Sixth Amendment was not implicated when Petitioner initiated a conversation with Sgt. Cox while Cox transported Petitioner, because formal charges had not been brought^[4] [Id. at 12 - 14]; (3) Petitioner's claims that he was denied due process when the trial court admitted exemplar footwear evidence and attendant lay opinion testimony of the investigating office in violation of the Rules of Evidence, is procedurally barred from this Court's review because Petitioner failed to exhaust his state remedies as to this claim. [Id. at 15 - 20]; and (4) Petitioner has not demonstrated ineffective assistance of counsel pursuant to the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), because: (a) counsel contemplated pretrial publicity concerns, but determined it was in Petitioner's best interest to remain in Harrison County for trial [Id. at 24 - 25]; (b) trial counsel's questioning of witness Carey did not rise to the level of deficient performance, and even if it did, Petitioner cannot demonstrate that the result of his trial would have been different [Id. at 25 - 26]; and (c) Petitioner failed to demonstrate that counsel was constitutionally deficient for failure to investigate an alibi, because Petitioner did not provide counsel with an alibi defense, only that Petitioner was present at the victim's home, but did not get out of the car or go into the victim's residence with Payne^[5] [Id. at 26 - 27].

Petitioner filed a response and exhibits in opposition to Respondent's motion to dismiss and motion for summary judgment on June 27, 2022. ECF Nos. 36, 36-1 through 36-3.^[6] In his response, Petitioner contends that: (1) he exhausted^[7] all of his grounds for relief; (2) the state court decisions were contrary to or an unreasonable application of federal law; and (3) the state court decisions were based on an unreasonable determination of the facts. ECF No. 36 at 4.

More specifically, petitioner addresses each of his grounds for relief. As to his first ground, Petitioner contends that his case was severed from that of his co-defendant, Payne, to keep Payne's...