Forney v. Ballard
| Decision Date | 09 January 2012 |
| Docket Number | Civil Action No. 2:10-CV-128 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | CHRISTOPHER MICHAEL FORNEY, Petitioner, v. WARDEN DAVID BALLARD, Respondent. |
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of the United States Magistrate Judge David J. Joel [Doc. 29]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Joel for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Joel filed his R&R on November 30, 2011 [Doc. 29]. In that filing, the magistrate judge recommends that the respondent's Motion to Dismiss Petition for Failure to Exhaust Available State Remedies [Doc. 18] be granted and the petitioner's § 2254 Petition for Writ of Habeas Corpus [Doc. 1] be dismissed with prejudice [Doc. 29 at 19].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, this Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novoreview and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. The docket reflects that service was accepted on December 2, 2011 [Doc. 30]. Petitioner timely filed his objections on December 8, 2011 [Doc. 31]. Accordingly, this Court will review the portions of the R&R to which objection was made under a de novo standard of review. The remaining portions of the R&R will be reviewed for clear error.
In April 2000, petitioner was charged with first degree sexual assault, first degree sexual abuse, and contributing to the delinquency of a minor [Doc. 18-1]. Petitioner was convicted of all three counts on May 22, 2001, after a bench trial [Doc. 18-2]. On January 14, 2002, the petitioner was sentenced to the following consecutive sentences: (1) fifteen to thirty-five years for the first degree sexual assault count, (2) one to five years for the first degree sexual abuse count, and (3) one year in county jail for the contributing to the delinquency of a minor count [Doc. 18-3 at 4]. The Court later ordered that the sentences run concurrently [See Doc. 18-6, n.1 at 4]. On August 14, 2003, petitioner appealed his conviction and sentence to the West Virginia Supreme Court of Appeals on various grounds of trial court error and ineffective assistance of counsel claims [Doc. 18-4]. The West Virginia Supreme Court of Appeals denied his appeal on November 19, 2003 [Id. at 2].
On December 1, 2003, the petitioner filed his first state habeas petition, including claims of absence of jurisdiction, ineffective assistance of trial counsel, prosecutor's conflict of interest, witness perjury, and trial court error [Doc. 18-8]. Petitioner filed an amended petition after counsel was appointed [See 3:05-cv-124 Doc. 11-9]; the amended petition included the following supplemental grounds for relief: additional ineffective assistance of counsel claims, improper venue, and excessive sentence. The habeas petition was denied on May 13, 2005 [See Doc. 18-9]. In its order, the Circuit Court of Morgan County, West Virginia, found that petitioner had "knowingly and intelligently waived all grounds for relief other than" his ineffective assistance of counsel claim, his improper venue claim, and his excessive sentence claim [Id. at 4]. However, the court found that the petitioner had "failed to establish a right to relief" on any of those grounds [Id. at 9, 14, and 18] and, accordingly, denied his petition [Id. at 18].
On October 27, 2005, the petitioner filed an "Addendum to Writ of Habeas Corpus Subjiciendum Pro-Se" with the West Virginia Supreme Court of Appeals [3:05-cv-124 Doc. 11-11], which was received by the court on November 7, 2005 [3:05-cv-124 Doc. 11-13]. In the filing, the petitioner stated that he was submitting the addendum to the "petition that counsel Christopher Prezioso sent in [May 2005]" [Id. at 2]. However, on November 8, 2005, the Office of the Clerk for the West Virginia Supreme Court of Appeals informed the petitioner that no such petition for appeal had been received [3:05-cv-124 Doc. 1 at 13]. The petitioner then filed an "Objection to the Circuit Court's Refusal to Send Petitioner's Habeas Corpus to the West Virginia Supreme Court of Appeals" with the Circuit Court of Morgan County, West Virginia [Id. at 22]. On December 9, 2005, the petitioner filed his first original jurisdiction petition for a writ of habeas corpus ad subjiciendum with the WestVirginia Supreme Court of Appeals [Doc. 18-19]. The petition included claims of trial court error and ineffective assistance of counsel [Id.]. The West Virginia Supreme Court of Appeals denied the petition on May 11, 2006 [Id. at 2].
On January 26, 2006, the petitioner filed his second state habeas petition with the Circuit Court of Morgan County, West Virginia [Doc. 18-11 at 2]. The petition included the following grounds for relief: ineffective assistance of habeas appellate counsel claims and various trial court errors [Id.]. The circuit court entered an Order Dismissing Petition for Writ of Habeas Corpus Ad Subjiciendum Without Prejudice on May 2, 2006 [Doc. 18-12]. Although the record reflects that the petitioner filed his appeal of the first state habeas petition in February 2007, the circuit court noted in its order that, "[a]s of May 1, 2006, the clerk for the [West Virginia] Supreme Court of Appeals confirmed that the Supreme Court ha[d] not decided whether to grant or refuse [p]etitioner's appeal for his First Habeas Petition and his Motion for Reconsideration of Sentence" [Id. at 4].
The petitioner appealed the denial of his second petition on July 25, 2006 [See Doc. 18-13]. The West Virginia Supreme Court of Appeals refused the appeal on December 6, 2006 [Id. at 2]. On February 23, 2007, the petitioner filed a pro se motion for leave to file a petition for appeal from the denial of the first state petition for writ of habeas corpus out-of-time [See Doc. 18-10]. The petitioner claimed the following grounds for relief: improper venue, various trial court errors, excessive sentence, absence of jurisdiction, ineffective assistance of trial counsel, prosecutorial misconduct, and disproportionate sentence to co-defendant [Id.]. The West Virginia Supreme Court of Appeals denied this motion on May 10, 2007 [Id. at 2]; however, the West Virginia Supreme Court of Appeals granted the petitioner "leave to file a separate Petition for Writ of Habeas Corpus and motion forappointment of counsel raising all issues not previously adjudicated to finality" [Id.].
Also on February 23, 2007, the petitioner filed his third Petition for Writ of Habeas Corpus with the Circuit Court of Morgan County [Doc. 18-12]. The petition included grounds for relief based upon ineffective assistance of trial and habeas counsel and excessive sentence claims [Id.]. The petitioner filed an amended petition on March 22, 2010 [Doc. 18-15]. On November 23, 2010, the Circuit Court of Morgan County, West Virginia, entered a Summary Dismissal of Petition for Writ of Habeas Corpus with regard to the petitioner's third habeas petition [Doc. 18-16]. The Circuit Court of Morgan County, West Virginia, found that petitioner's ineffective assistance of trial counsel and excessive sentence claims "ha[d] previously been adjudicated and constitute res judicata" [Id. at 7]. The circuit court then summarily dismissed without prejudice the remaining ineffective assistance of habeas counsel claim, which it had found was not yet ripe for review [Id.].
On June 17, 2009, the petitioner filed his fourth Petition for Writ of Habeas Corpus with the Circuit Court of Morgan County, West Virginia [Doc. 18-17 at 2]. The circuit court dismissed the petition on October 30, 3009 [Id.]. The following month, on November 23, 2009, the petitioner filed his second original jurisdiction Petition for Writ of Habeas Corpus Ad Subjiciendum with the West Virginia Supreme Court of Appeals [Doc. 18-20]. The petition included the following grounds for relief: improper venue and various trial court errors [Id.]. The West Virginia Supreme Court of Appeals denied the petition on February 11, 2010 [Id.].
The petitioner filed his first federal petition for writ of habeas corpus under 28 U.S.C.§ 2254 on November 22, 2005 [3:05-cv-124 Doc. 1]. The petition included the following grounds for relief: improper venue and related arguments, ineffective assistance of trial counsel, ineffective assistance of habeas counsel, and disproportionate sentence with co-defendant [Id.]. Magistrate Judge John Kaull entered an Opinion/Report and Recommendation on January 30, 2007, in which he recommended that the petition be dismissed for failure to exhaust available state remedies [3:05-cv-124 Doc. 9]. The Honorable Irene M. Keeley, United States District Judge, adopted the Opinion/Report and Recommendation and dismissed the petition for failure to properly exhaust state remedies on February 22, 2007 [3:05-cv-124 Doc. 21].
On November 18, 2010, the petitioner filed the instant § 2254 petition with this Court [Doc. 1]. The respondent filed a Motion to Dismiss Petition for Failure to Exhaust Available State...
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