Long v. Ballard

• Decision Date: 30 December 2013
• Docket Number: CIVIL ACTION NO. 2:13-CV-26 (BAILEY)
• Court: U.S. District Court — Northern District of West Virginia
• Parties: NATHAN LONG, Petitioner, v. DAVID BALLARD, Warden, Respondent.

NATHAN LONG, Petitioner, v. DAVID BALLARD, Warden, Respondent.

CIVIL ACTION NO. 2:13-CV-26 (BAILEY)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ELKINS

DATED: December 30, 2013

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART

REPORT AND RECOMMENDATION

On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and a recommendation ("R&R"). Magistrate Judge Seibert filed his R&R on December 2, 2013 [Doc. 39]. In that filing, the magistrate judge recommended that this Court grant Respondent's Motion for Summary Judgment [Doc. 22], deny petitioner's 28 U.S.C. § 2254 motion without prejudice, and dismiss this action from the docket.

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 timely made. However, the Court is not required to review, under a de novo or any otherstandard, 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 novo review 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 Seibert'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 petitioner timely filed his objections [Doc. 27] on September 23, 2013. Accordingly, this Court will conduct a de novo review of the portions of the magistrate judge's R&R to which the petitioner objects. The remainder of the R&R will be reviewed for clear error.

I. Facts

A. State Criminal Proceedings

In May 2007, the Harrison County Grand Jury returned a twenty-five count indictment against petitioner Nathan Long, then a resident of Willard, West Virginia, charging him with seven offenses of first-degree sexual assault, sixteen offenses of sexual abuse by a parent, guardian, or custodian, and two counts of third-degree sexual abuse. [Doc. 22-2 at 8]. At the time of the indictment, petitioner was living with his girlfriend, Jean Shaw, with his two daughters, and with Ms. Shaw's three minor children, T.L.E., J.A.E., and B.J.E. Id. Ms. Shaw's children were the victims of petitioner's offenses. Id.

Petitioner was found guilty on three counts of first-degree sexual assault and six counts of sexual abuse by a parent, guardian, or custodian, and was subsequentlysentenced to not less than 25 nor more than 55 years imprisonment, with an additional ten years of supervised release to follow.¹ Id. at 9-10.

B. Direct Appeal

Petitioner filed his appeal on January 28, 2009, alleging the following assignments of error:

1. Sufficiency of the evidence;

2. Fatal variance between the dates of the offenses charged in the indictment and the State's evidence presented at trial, which prejudiced the defendant by denying him the opportunity to present an adequate defense;

3. The State obstructed the defendant's access to his witnesses, that being the daughters of the defendant, thereby denying him a fair trial;

4. The State purposely blocked the defendant's access to a State's witness, Jean Shaw, by blatantly and falsely threatening Ms. Shaw with criminal prosecution.

[Doc. 22-2 at 6]. By order entered June 3, 2009, the West Virginia Supreme Court of Appeals refused petitioner's direct appeal. Id. at 3. Petitioner did not petition for writ of certiorari to the Supreme Court of the United States.

C. State Habeas Petition

On November 9, 2009, petitioner filed a pro se habeas petition in the Circuit Court of Harrison County. [Doc. 22-4]; [Doc. 22-6 at 4, 3:5-6].² Subsequently, the Circuit Courtappointed him counsel. At some point during the proceedings, petitioner filed an unsigned, undated memorandum of law, which appears to have been prepared pro se, as an accompaniment to his petition. See [Doc. 22-5 at 14-18]. On or about November 9, 2009, the Circuit Court issued an order directing the petitioner to fill out a Losh checklist of grounds for habeas relief. [Doc. 22-6 at 4, 3:5-8]; [Doc. 22-5 at 10]. In the checklist, a "Supplemental Petition for Habeas Corpus" prepared by appointed counsel, and the unsigned, undated memorandum of law, petitioner indicated that he was raising the following grounds in support for habeas relief:

1. Statute under which conviction obtained unconstitutional;

2. Consecutive sentences for same transaction;

3. State's knowing use of perjured testimony;

4. Ineffective assistance of counsel (based upon failure of counsel either to move to strike juror Robert Shaffer or to use a strike to remove him);

5. Excessiveness or denial of bail;

6. Challenges to the composition of grand jury or its procedures (trial court erred when it failed to disqualify juror Robert Shaffer; the State failed to put on sufficient witnesses to permit the grand jury to test the evidence, confront all witnesses, and fully investigate);

7. Claims concerning use of informers to convict;

8. Constitutional errors in evidentiary rulings;

9. Sufficiency of evidence;

10. Severer sentence than expected;

11. Excessive sentence;

12. Unconstitutional opening and closing arguments.

[Doc. 22-5 at 2-5, 10-18]. The state habeas court conducted an omnibus evidentiary hearing that began on October 1, 2010 and continued on November 18, 2010. [Doc. 22-6 at 2], [Doc. 22-7 at 2]. The court informed petitioner that he was "required toraise all grounds . . . claiming that [he was] entitled to any relief from this Court on the basis of [his] habeas petition or the supplemental petition that was filed by [his attorney]," and that if petitioner failed to raise any of those grounds at the hearing, he would be deemed to have waived those grounds. Petitioner stated that he understood. [Doc. 22-6 at 4-5, 3:20-4:8].³

By opinion order entered August 25, 2011, the state habeas court denied all of petitioner's grounds for relief. [Doc. 22-9].

D. State Habeas Appeal to the West Virginia Supreme Court of Appeals

Petitioner filed his notice of appeal of the denial of his state habeas petition with the West Virginia Supreme Court of Appeals on September 23, 2011. [Doc. 22-10 at 8]. He raised two assignments of error:

1. The circuit court was clearly wrong where it concluded that the petitioner failed to prove his trial counsel was ineffective by a preponderance of the evidence;

2. The circuit court was clearly wrong where it failed to address in its Order petitioner's claim that the [trial] court erred in not excluding a biased juror as a matter of law as a ground for habeas corpus relief.

Id. at 13. By memorandum decision issued January 14, 2013, the West VirginiaSupreme Court affirmed the denial of petitioner's state habeas petition. [Doc. 22-11].

E. Petitioner's Federal Habeas Action

On April 8, 2013, petitioner filed the instant petition without a memorandum in support. His federal petition raises four grounds for relief:

1. "Trial counsel was ineffective, for failing to move to quash the faulty indictment for multiplicity, same transaction and same element violations, and for failure to bar a raising of double jeopardy protections [sic]."

2. "Habeas counsel failed to advance all available grounds for relief at omnibus state habeas hearing which denied petitioner his right to consideration and appeal of said issues."

3. "Indictment fails to fully inform recent change in law reveals failure to fully inform and double jeopardy concerns [sic]."

4. "Actual innocence — post trial psychological evaluation shows actual innocence. Not raised by habeas or appeal counsels — ineffectiveness [sic]."

[Doc. 1 at 6, 8-9, 11, 13].

The respondent, David Ballard, filed a Motion for Summary Judgment [Doc. 22] on August 15, 2013. Petitioner filed his Response, styled as a Reply [Doc. 38] on November 21, 2013.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Supreme Court has recognized that motions for summary judgment may be used to test the factual sufficiency of the allegations in habeas proceedings. See Blackledge v. Allison, 431 U.S. 63, 80 (1977).

III. Analysis

A. Exhaustion of State Remedies

In order for a state prisoner to pursue a petition for writ of habeas corpus in federal court, the petitioner must first exhaust his state remedies. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement stems from the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers . . . have had an opportunity to pass upon the matter." Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)). In service of that end, the exhaustion requirement affords state courts the first opportunity to correct any violation of state prisoners' federal rights.

To exhaust his state remedies, a habeas petitioner must "fairly present" the substance of his claim to the state's highest court. Picard v. Connor, 404 U.S. 270, 275-78 (1971); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (quoting Picard, 404 U.S. at 278). The substance of a claim is fairly presented when "both the operative facts and controlling legal principles" are plainly placed before the state court. Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192, 205 (4th Cir. 2011) (quoting Verdin...