Clement v. Ames, 2:15-cv-02320
| Decision Date | 07 July 2020 |
| Docket Number | 2:15-cv-02320 |
| Parties | LARRY CLEMENT, Petitioner v. DONALD F. AMES, Superintendent, Mount Olive Correctional Complex, Respondent. |
| Court | U.S. District Court — Southern District of West Virginia |
PROPOSED FINDINGS AND RECOMMENDATIONS
Pending before the Court are Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, as Amended (ECF Nos. 2, 20), and Respondent's Motion for Summary Judgment, (ECF No. 25). This case is assigned to the Honorable Thomas E. Johnston, United States District Judge and by standing order is referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
After thorough consideration of the record, the undersigned conclusively FINDS that (1) there are no genuine issues of material fact and (2) Clement is not entitled to the relief requested. Therefore, for the reasons that follow, the undersigned respectfully RECOMMENDS that the presiding district judge GRANT Respondent's Motion for Summary Judgment, (ECF No. 25); DENY Petitioner's Petition for a Writ of Habeas Corpus as Amended, (ECF Nos. 2, 20); and DISMISS and REMOVE this case from the docket of the court.
In May 2007, Petitioner, Larry Clement (“Clement”), was indicted by a Fayette County grand jury on thirty-two counts of first-degree sexual abuse, sixteen counts of first-degree sexual assault, thirty-two counts of sexual abuse by a parent, guardian, or custodian, and sixteen counts of second-degree sexual assault. (ECF No. 9-1 at 3). The indictment alleged that Clement had sexually abused two minors, A.C.H. and A.S.H., over a period of sixteen months from September 2005 to December 2006. (Id. at 4). The alleged victims were the granddaughters of the woman with whom Clement cohabitated for many years. (ECF No. 9-2 at 52).
Clement's trial began on January 28, 2008, in the Circuit Court of Fayette County, West Virginia (“Circuit Court”). (ECF No. 24-29 at 2). During voir dire proceedings the prospective jurors were asked whether they knew either of the State's prosecuting attorneys, Carl Harris and Jennifer Hewitt, personally or through business relationships. One prospective juror, Marjorie Marsh, indicated that she had previously been represented by Mr. Harris in a real estate transaction. (Id. at 14-15). Ms. March asserted that this prior interaction with Mr. Harris would not affect her ability to judge the case fairly. (Id. at 15).
The Circuit Court advised the prospective jurors that the criminal case alleged crimes involving sexual assault and abuse and inquired if any of the prospective jurors had ever been victims of sexual abuse, or been close to a victim of sexual abuse. (Id. at 39). Several prospective jurors responded in the affirmative and were questioned privately in camera regarding whether they believed their experience with sexual abuse would impact their ability to fairly judge the case. (Id. at 39-53). A number of the prospective jurors questioned stated they would be unable to remain neutral based on their past experience with sexual assault and were accordingly excused for cause. (ECF No. 24-29 at 46-52).
At a later point in the voir dire proceedings, Mr. Harris inquired of the prospective jurors whether they watched shows such as “CSI, NCIS, or any of those other acronyms, ” and whether they believed that “there has to be some sort of physical evidence in a case before you can convict someone of a crime?” (Id. at 69). Mr. Harris further stated that:
Sometimes all you have in a case is the testimony of witnesses, because there's no physical evidence. In this case, although it's a sexual assault and sexual abuse case, it doesn't involve sexual intercourse with anyone. It involves touching someone, accusations of placing a finger inside of the young lady's vagina, where there would not be any physical evidence.
(Id. at 69-70).
Following the conclusion of voir dire proceedings, Mr. Harris outlined the State's case in his opening statement, explaining to the jury how the evidence would show that from September 2005 through December 2006, Clement sexually abused two minors, A.C.H. and A.S.H., who were the grandchildren of Clement's long-term girlfriend. (Id. at 97-99). In response, Clement's attorney, Charles Mullins (“Mullins”), told the jury in his opening statement that the evidence would establish that Joe Howell (“Howell”), a state trooper and the father of the alleged victims, orchestrated the charges against Clement in retaliation for his support of the victims' mother during her divorce proceedings against Howell. (Id. at 102-04).
The State's first witness was A.S.H., who was 16 years old at the time of the trial. (Id. at 112-13). A.S.H. testified that she lived in Oak Hill, West Virginia with her parents and siblings. She had a grandmother, Carolyn Candler, who lived a short distance from her family's home. (ECF No. 24-29 at 114-16). Clement lived with A.S.H.'s grandmother for as long as she could remember. A.S.H. visited her grandmother “about every weekend, ” and would frequently spend the night. (Id. at 116).
A.S.H. testified that Clement “would grab me forcibly into him, and he would go up my shirt, under my bra and grab my breasts, and then he would go down my pants and start rubbing my vagina.” (Id. at 117). Clement would put the tip of his finger into A.S.H.'s vagina during these assaults. (Id.). An assault of this type occurred in September 2005, and Clement continued to sexually abuse A.S.H. at least once a month, until she told her father about the unwanted touching in January 2007. (Id. at 117). A.S.H. stated that these assaults normally happened late at night when her grandmother was in other rooms of the house, either in bed or in the computer room located at the back of the house. (Id. at 117-18).
When asked if she attempted to stop Clement when he tried to touch her, A.S.H. testified that she did, explaining: “I would put my hand where my pants was and try to push his hand up from going down my pants.” (ECF No. 24-29 at 118). Clement ignored these attempts at resistance. (Id.). A.S.H. stated that when Clement did these things to her, “he just acted like I was his or something.” (Id. at 122).
A.S.H. did not tell anyone about these assaults until January 2007, after her little sister, A.C.H., asked her “[h]as he ever touched you?” (Id. at 118). When A.S.H. asked her sister what she meant, A.C.H. said “[w]ell, he's been going up my shirt and down my pants.” (Id.). Following this conversation, A.S.H. believed she should inform her father about what Clement had been doing to her at her grandmother's house. (Id.). A.S.H. asserted she had not done so before because she was afraid of Clement. (ECF No. 24-29 at 118). A.S.H. explained that Clement would “always be cussing and hollering and plus he always forced me into him.” Further, Clement told her, (Id. at 119). Clement once asked A.S.H. if she would like to go somewhere, such as the beach, with him and without her mother and father present. This frightened A.S.H., who became worried Clement might kidnap her. (ECF No. 24-29 at 119).
A.S.H. testified that she felt “very uncomfortable” when Clement did these things to her, and that she became so unhappy (Id. at 119-20). During the latter half of 2006, when these events were occurring, A.S.H.'s grades began to fail, and she told her mother and father she wished a car would run over her. (Id. at 120-21). A.S.H. also began practicing self-harm, which she hid from her parents by wearing large bracelets. (Id. at 122-23). A.S.H. made an in-court identification of Clement. (Id. at 125).
On cross-examination, Mullins questioned A.S.H. regarding a number of issues; including, the presence of other people in her grandmother's house when the sexual abuse allegedly took place. (Id. at 128-35). A.S.H. conceded that her sister and mother were often present during A.S.H's visits with her grandmother, although her grandmother was usually in a back room, or was sleeping. When asked about her clothing, A.S.H. explained that she was of the Apostolic faith, so she wore ankle-length skirts, with leggings underneath. (ECF No. 24-29 at 136-37). Mullins questioned A.S.H. about her parents' relationship, and she testified that there was a period of time when her parents lived apart, although she did not know the details. (Id. at 137-38). Mullins inquired if A.S.H. had spoken with anyone prior to trial regarding the content of her anticipated testimony, to which A.S.H. denied having done so. (Id. at 125-26). Under re-direct examination, A.S.H. clarified that she had spoken with the prosecutor prior to the trial regarding what Clement had done to her, and the prosecutor had told her that all she had to do at trial was tell the truth. (Id. at 138-39).
The State's next witness was Dr. Aditya Sharma. (Id. at 142). Dr. Sharma received a medical degree in psychiatry from the University of Virginia Medical School and had been a practicing psychiatrist in West Virginia since 2005. (Id. at 142-43). He was recognized as an expert in the field of psychiatry by the Circuit Court. (ECF No. 24-29 at 143-44). Dr. Sharma testified that he began treating A.S.H. and A.C.H. in March 2007. (Id. at 144). At that time, A.S.H.'s mother was concerned about A.S.H.'s suicidal tendencies, reporting that A.S.H. was cutting herself, had threatened to jump in front of a car and had twice taken an...
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