Elswick v. Holland

• Decision Date: 10 December 1985
• Docket Number: Civ. A. No. 84-2376.
• Citation: 623 F. Supp. 498
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Gregory F. ELSWICK, Petitioner, v. Manfred HOLLAND, Warden, et al, Respondents.

623 F. Supp. 498

Gregory F. ELSWICK, Petitioner, v. Manfred HOLLAND, Warden, et al, Respondents.

Civ. A. No. 84-2376.

United States District Court, S.D. West Virginia, Charleston Division.

December 10, 1985.

Gregory F. Elswick, pro se.

Mary Rich Maloy, Deputy Atty. Gen., Charleston, W.Va., for respondents.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending before the Court is the habeas corpus petition of Gregory F. Elswick. The Respondents, West Virginia State officials, have filed a motion to dismiss¹ and an answer. The pro se Petitioner has filed a "Rebuttal."

The Petitioner, Elswick, was indicted in 1983 by a Kanawha County, West Virginia, grand jury for three counts of sexual assault. The alleged incident of sexual assault occurred in Charleston, West Virginia, on January 23, 1983. Elswick was accused of forcing a young female to submit to oral, anal and vaginal intercourse. Each of these acts was assigned a count of the three-count indictment. After a two-week trial, which commenced on December 7, 1983, Elswick was found guilty of Count Three of the indictment. The trial judge thereupon sentenced Elswick to an indeterminate term of not less than five nor more than ten years in the West Virginia Penitentiary. He is currently incarcerated at that institution.²

After the determination of guilt at the trial court, Elswick's counsel filed a petition with the West Virginia Supreme Court of Appeals alleging error by the trial court and requesting a new trial. Elswick assigned the following seven grounds as error.

"I. The Circuit Court of Kanawha County committed reversible error by denying appellant's motion to set aside judgment and motion for judgment of acquittal due to the insufficiency of the evidence to substantiate a conviction of second degree sexual assault.

II. The Circuit Court of Kanawha County committed prejudicial error in not performing sic the defense to inquire into or to cross-examine about the alleged victim's prior sexual conduct.

III. The Circuit Court of Kanawha County committed reversible and prejudicial error when he restricted trial defense counsel's cross examination of Dr. Bernard Luby as to his examination of the victim.

IV. The Circuit Court of Kanawha County erred prejudicially to the interest of the appellant in failing to order that a presentence investigation be conducted into the background of the appellant.

V. The Circuit Court of Kanawha County erred when it revoked the appellant's bond after the trial and committed the appellant to jail pending further proceedings.

VI. The trial courts conduct unduly influenced the outcome of the judgment of guilt and unduly influenced and prejudiced the jurors in the outcome of the case below.

VII. The court below committed error in failing to accord the appellant an opportunity to present evidence in extenuation and mitigation prior to sentencing."

The West Virginia Supreme Court refused to hear the appeal. Consequently, Elswick has turned to this Court for relief. He incorporates by reference the brief his counsel submitted to the state court and the arguments contained therein.³

In addition to an answer, the Respondents filed a motion to dismiss.⁴ Their argument is essentially in two parts. They argue first that Elswick has failed to state grounds suitable for habeas corpus relief. Second, they argue that Elswick has not exhausted his state remedies. The Court turns first to the exhaustion argument.

The Court finds the Respondents' argument that Elswick has not exhausted his state remedies to be meritless. The Respondents contend that the "allegation of state theories is not sufficient to apprise the court of federal constitutional issues as a state prisoner is required `to present the State Courts with the same claim he urges upon the federal courts.'" Respondents' motion, p. 2 (quoting, Picard, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)). The Respondents' statement of the law is quite correct. To meet the state exhaustion requirement, a petitioner must present his federal constitutional claim to the state court as a federal constitutional claim. Nelson v. Solem, 714 F.2d 57, 59 (8th Cir.1983). "It is not enough that all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam). Nevertheless, the Respondents' argument has no application here. Elswick is presenting verbatim to this Court the arguments he presented to the state court. Thus, he cannot be said to be presenting arguments in a light different from those brought before the state court.

If the Respondents' motion has any worth, it is to be found in their contention that Elswick has not raised a federal question in his petition. The point is material because on this subject (habeas corpus) a federal court's scope of review is narrow. It can entertain an application for a writ of habeas corpus, "only on the ground that the petitioner is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254; see also Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975). It is well settled that matters of state law not involving federal constitutional issues are not appropriate grounds for federal habeas corpus relief. Chance v. Garrison, 537 F.2d 1212 (4th Cir.1976); Grundler v. North Carolina, 283 F.2d 798 (4th Cir.) cert. denied, 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 738 (1960). A few of the grounds assigned by Elswick raise only state law claims; the Court will come to them in turn.

Elswick has requested that a hearing be scheduled so that he might air his grievances. The Court, however, does not find that a hearing is necessary. When "there is no dispute over what happened at the trial, but merely over its legal consequences," Grundler, 283 at 802, a hearing need not be held. See also Bradley v. Cowan, 500 F.2d 380, 381 (6th Cir.1974) (where a petition for habeas corpus raises a purely legal issue, no hearing is required). Moreover, none of the circumstances enumerated in 28 U.S.C. § 2254 exist which would mandate that an evidentiary hearing be held. Having addressed this point, the Court now turns to the grounds raised by Elswick.

Elswick assigns as his first ground the allegedly insufficient evidence at trial to support a conviction of second degree sexual assault. He contends specifically that there was no evidence that the victim resisted the efforts of her assailant. Elswick fashions this argument from the language of the controlling statute. W.Va. Code, § 61-8B-4(a) provides, in pertinent part, that: "a person is guilty of sexual assault in the second degree when: (1) such person engages in sexual intercourse or sexual intrusion with another person without the person's consent and the lack of consent results from forcible compulsion." Section 61-8B-1 defines "forcible compulsion" as

"(a) Physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or

(b) threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped."

For the purposes of this definition, `resistence' includes physical resistance or any clear communication of the victim's lack of consent."

The Court believes that Elswick puts too much emphasis on the element of resistance. The import of the statute is that a victim does not have to endanger herself by fierce resistance when threats and intimidation have been employed against her. The Court finds ample evidence from which the jury could have concluded that the victim's lack of consent was overcome by threats and intimidation.

In spite of the above examination of the merits, the Court notes that the sufficiency of the evidence is normally a matter of state law and procedure and does not involve federal constitutional issues. Grundler, 283 F.2d at 802. There is a Fourteenth Amendment violation only when the conviction is so totally devoid of evidentiary support as to raise a due process issue. Id. at 801. The situation here stops far short of assuming constitutional dimensions.

Elswick contends that West Virginia's Rape Shield Law denied him the opportunity to effectively cross examine the victim and the treating physician.⁵ The Court need not tarry long on this point. The West Virginia Supreme Court has itself held that the statute, W.Va.Code, § 61-8B-12,⁶ does not violate the right to confrontation guaranteed by the Sixth Amendment. State v. Persinger, 286 S.E.2d 261 (W.Va. 1982); State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979).⁷ While this Court is not bound by the state court's holdings, it finds them to be well reasoned and persuasive. Moreover, the Court does not find any merit in Elswick's contention that the state placed the victim's character in evidence.

Elswick raises two grounds which the Court finds to be unsuitable for review on a petition for habeas corpus. He contends that the trial court erred when it revoked his bond prior to appeal and that the trial court influenced and prejudiced the jurors when it instructed the jury on a count of the indictment during the opening of the trial as opposed to at the end of the trial. Both of these grounds are based upon state law. The Court fails to discern any allegation that rights protected by federal law were breached.

Elswick claims that he was prejudiced by the trial court's refusal to have a presentence investigation report prepared. He cites a West Virginia statute, W.Va. Code, § 62-12-7,⁸ which, as read by this Court, grants a trial court the discretion of whether to order a presentence investigation. See State ex rel Simpkins v. Harvey, 305 S.E.2d 268 (W.Va.1983); see also West Virginia Rule of Criminal Procedure 32(c); cf., Hazelwood v. Arnold, 539 F.2d 1031 (...