Elswick v. Plumley, Case No.: 2:14-cv-29300

• Decision Date: 01 May 2015
• Docket Number: Case No.: 2:14-cv-29300
• Court: U.S. District Court — Southern District of West Virginia
• Parties: RAYMOND ELSWICK, Petitioner, v. MARVIN C. PLUMLEY, Warden, Huttonsville Correctional Center, Respondent.

RAYMOND ELSWICK, Petitioner, v. MARVIN C. PLUMLEY, Warden, Huttonsville Correctional Center, Respondent.

Case No.: 2:14-cv-29300

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

May 1, 2015

PROPOSED FINDINGS AND RECOMMENDATIONS

Pending before the court are Petitioner Raymond Elswick's ("Elswick") Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 4); Motion for Default Judgment, (ECF No. 12); and Motion to Hold 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in Abeyance, or in the alternative, to Dismiss Without Prejudice, (ECF No. 15). Also pending is Respondent's Motion to Dismiss Petition for Failure to Exhaust and Timeliness, (ECF No. 9). This case is assigned to the Honorable Joseph R. Goodwin, 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).

The undersigned notes that the record before the court is well-developed and provides a sufficient basis upon which to resolve this matter without need for an evidentiary hearing. See Rule 8, Rules Governing Section 2254 Cases. Havingthoroughly reviewed and considered the record, the undersigned FINDS that Elswick has failed to exhaust his state court remedies as to some of his claims, and thus, he has prematurely filed his petition for a writ of habeas corpus in this court. Nevertheless, the undersigned RECOMMENDS that the District Judge FIND that Elswick is entitled to a stay while he exhausts his state court remedies for his unexhausted claims. Therefore, the undersigned respectfully RECOMMENDS that the presiding District Judge GRANT Elswick's Motion to Hold 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in Abeyance, or in the alternative, to Dismiss Without Prejudice, to the extent that it requests a stay; DENY Respondent's Motion to Dismiss, without prejudice; DENY Elswick's request for habeas relief, without prejudice; GRANT Elswick a STAY so that he may pursue his state court remedies; and hold Elswick's habeas petition in ABEYANCE pending exhaustion of his state court remedies. In light of the timeliness concerns reflected in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, the undersigned further RECOMMENDS that the District Judge condition the stay on Elswick pursuing his state court remedies within thirty days of the date that the order to stay is entered and require Elswick to return to federal court within thirty days after he has exhausted his state court remedies. Additionally, the undersigned RECOMMENDS that ground 13 of Elswick's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be STRICKEN. Finally, the undersigned respectfully RECOMMENDS that the presiding District Judge DENY and DISMISS Elswick's Motion for Default Judgment.

I. Procedural History

A. Indictment, Trial, and Appeal

In September 2005, Elswick was indicted by a Roane County, West Virginia grand jury for one count of first-degree murder, one count of felony murder, one count of kidnapping, and three counts of conspiracy to commit a felony. (ECF No. 9-3 at 6; ECF No. 9-17 at 48). More specifically, Elswick and two co-defendants were accused of beating the victim at three separate locations, causing his death, after the victim was purportedly caught molesting the nine-year-old child of Elswick's co-defendants.¹ (ECF No. 9-13 at 5). On April 24, 2007, Elswick's first trial ended in a mistrial after the prosecutor "indirect[ly] and unintentional[ly]" commented on Elswick's failure to testify at trial. (ECF No. 9-13 at 6). In July 2008, at his second jury trial, Elswick was found guilty of voluntary manslaughter and one count of conspiracy. (ECF No. 9-8 at 4; ECF No. 9-13 at 6). In December 2008, at a recidivist trial, a jury found that Elswick had committed two prior felonies, and subsequent to the jury's determination, the trial court concluded that the two prior felonies were crimes of violence. (ECF No. 9-8 at 3-4). Consequently, in January 2009, the trial court sentenced Elswick to life in prison for the voluntary manslaughter conviction pursuant to W. Va. Code § 61-11-18.² (ECF No. 9-8 at 4).

Elswick appealed his convictions to the Supreme Court of Appeals of West Virginia ("WVSCA") on May 21, 2009. (ECF No. 9-9 at 2). In his appellate brief, Elswick, through counsel, raised eleven assignments of error:

1. The trial court erred on July 20, 2007, in denying Elswick's motion to dismiss based upon Double Jeopardy when the prosecuting attorney caused a mistrial by commenting on Elswick's failure to testify violating his constitutional privilege against self-incrimination;

2. The trial court erred on July 8, 2008, in denying Elswick's renewed motion to dismiss based upon Double Jeopardy for the same reason;

3. The trial court erred in denying Elswick's motion to dismiss based upon prosecutorial misconduct when the prosecutor did not disclose a plea agreement entered into by the State and John Richards to secure his testimony in violation of Rule 16 of the West Virginia Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);³

4. The trial court erred on December 10, 2007, in denying Elswick's request for dismissal for discovery violations;

5. The trial court erred in denying Elswick's motion to dismiss for failure to provide a speedy trial in violation of the United States and West Virginia Constitutions and for violation of the statutory three-term rule contained in West Virginia Code § 62-3-21;

6. The trial court erred in denying Elswick's motion to dismiss for destruction of evidence where the State admittedly disposed of Rule 16 materials without disclosing such materials to the defense thereby violating Elswick's constitutional right to due process of law;

7. The trial court erred in refusing to give Elswick's theory of defense instruction as offered thereby violating his constitutional right to due process of law;

8. The trial court erred in refusing to give Elswick's jury instruction on battery as a lesser included offense thereby violating his constitutional right to due process of law; 9. The trial court erred in granting the State's motion to continue on July 9, 2009, thereby violating Elswick's constitutional right to due process of law;

10. The trial court erred in refusing to employ the use of juror questionnaires as requested by Elswick thereby violating his constitutional right to due process of law;

11. The trial court erred in refusing to grant Elswick's motion to dismiss the recidivist information.

(Id. at 21-22). In an April 1, 2010, per curiam published decision, the WVSCA affirmed Elswick's convictions. (ECF No. 9-13 at 2, 4-5); State v. Elswick, 693 S.E.2d 38, 42 (W. Va. 2010). The WVSCA issued its mandate in the case on May 3, 2010. (ECF No. 9-14 at 2).

B. State Habeas Proceedings

On February 18, 2011, Elswick filed a pro se petition for a writ of habeas corpus in Roane County Circuit Court. (ECF No. 9-17 at 6, 8, 10). The circuit court appointed Herbert Hively, II, to represent Elswick in the state habeas proceedings. (Id. at 8). In his state habeas petition, Elswick raised twelve claims for relief. (Id. at 40-41). Eleven of those claims were identical to those raised by Elswick on direct appeal to the WVSCA. (Id.) The only additional claim raised by Elswick was that his trial counsel was ineffective for the following reasons:

1. Counsel failed to properly advise Elswick of the possible results of going to trial;

2. Counsel "refused" to complete "certain aspects of defense";

3. Counsel failed to obtain "compulsory attendance of defense witnesses (Joe Hicks) and exculpatory evidence";

4. Counsel "failed to continue to represent the case to the fullest extent of the law as was understood";5. Other reasons to be determined after Elswick reviewed the entire record.

(Id. at 40). After conducting an omnibus evidentiary hearing, on May 20, 2013, the circuit court issued a written order denying Elswick's petition for state habeas relief. (Id. at 46-47; ECF No. 9-21 at 4, 6; ECF No. 9-22 at 4, 6).

On October 28, 2013, Elswick appealed the circuit court's denial of habeas relief to the WVSCA. (ECF No. 9-15 at 2-3). In his petition for appeal, Elswick raised three assignments of error: (1) "ineffective counsels"; (2) "Double Jeopardy"; and (3) "non-waiver [of] rights [in his] Losh [check]list."⁴ (Id. at 4). In his appellate brief, Elswick, through counsel, raised a single and very general, assignment of error: the circuit court erred in denying Elswick's petition for the reasons stated in his previously filed writ of habeas corpus. (ECF No. 9-16 at 5). On October 20, 2014, the WVSCA issued an unpublished memorandum decision affirming the circuit court's denial of habeas relief. (ECF No. 9-19 at 2); Elswick v. Plumley, No. 13-1110, 2014 WL 5328650, at *1 (W. Va. Oct. 20, 2014). The WVSCA issued its mandate affirming the circuit court's decision on November 19, 2014. (ECF No. 9-20 at 2).

C. Federal Habeas Proceedings

On December 8, 2014, Elswick filed his § 2254 petition in this court. (ECF No. 4 at 1). In his petition, Elswick raises thirteen grounds for relief:

1. Double Jeopardy - the circuit court erred by denying Elswick's motion to dismiss on July 20, 2007, after the prosecutor caused a mistrial by commenting on Elswick's silence during trial. (Id. at 5).

2. Double Jeopardy - the circuit court erred by denying Elswick's renewed motion to dismiss on July 8, 2008. (Id. at 7).

3. Prosecutorial misconduct in relation to the disclosure of the plea agreement with Mr. Richards. (Id. at 8).

4. The trial court erred when it failed to dismiss the case for numerous discovery violations. (Id. at 10).

5. The trial court erred in denying Elswick's motion to dismiss for violation of his right to a speedy trial. (Id. at 12).

6....