Lucas v. McBride
| Citation | 505 F.Supp.2d 329 |
| Decision Date | 23 August 2007 |
| Docket Number | Civil Action No. 2:05cv61. |
| Parties | James A. LUCAS, Petitioner, v. Thomas McBRIDE, Warden, Respondent. |
| Court | U.S. District Court — Northern District of West Virginia |
It will be recalled that on August 2, 2007, Magistrate Judge Kaull filed his Report and Recommendation, wherein the parties were directed, in accordance with 28 U.S.C. § 636(b)(1), to file with the Clerk of Court any written objections within ten (10) days after being served with a copy of the Report and Recommendation. Petitioner filed his objections to the Report and Recommendation on August 10, 2007.
Upon examination of the report from the Magistrate Judge, it appears to the Court that the issues raised by the Petitioner in his Petition For Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, wherein Petitioner raises as grounds several alleged trial errors, as well as the issues raised by Respondent in his Motion to Dismiss and Motion for Summary Judgment, were thoroughly considered by Magistrate Judge Kaull in his Report and Recommendation. Upon consideration of the Petitioner's objections, the Court finds that the Petitioner has not raised any issues that were not thoroughly considered by the Magistrate Judge in his Report and Recommendation. Moreover, the Court, upon an independent de novo consideration of all matters now before it, is of the opinion that the Report and Recommendation accurately reflects the law applicable to the facts and circumstances before the Court on the Respondent's Motion to Dismiss and Motion for Summary Judgment in this action. Therefore, it is
ORDERED that Magistrate Judge Kaull's Report and Recommendation be, and the same hereby is, accepted in whole and that this civil action, be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is
ORDERED that the Respondent's -Motion to Dismiss and Motion for Summary Judgment be, and the same hereby are, GRANTED. It is further
ORDERED that Petitioner's § 2254 petition be, and the same hereby is, DENIED and DISMISSED WITH PREJUDICE, and that the civil action be STRICKEN from the docket of this Court. It is further
ORDERED that the Clerk shall enter judgment for the Defendant. It is further
ORDERED that the Petitioner's request for an investigator shall be, and the same hereby is, DENIED as moot. It is further
ORDERED that if Plaintiff should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4 of the Federal Rules of Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, Plaintiff may, in accordance with the provisions of Rule 24(a) of the Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis.
On August 9, 2005, the pro se petitioner filed an Application for Writ of Federal Habeas Corpus by a Person in State Custody. On September 13, 2005, the petitioner filed a supplement to his petition. After payment of the required filing fee, the undersigned conducted a preliminary review of the file and determined that summary dismissal was not warranted at that time. Accordingly, the respondent was directed to show cause, why the petition should not be granted.
On October 13, 2005, the respondent filed a Motion to Dismiss the Petition as Successive. On March 7, 2006, the undersigned issued an Opinion/Report and Recommendation in which it was recommended that the respondent's motion be denied. That opinion was adopted by the Honorable Robert E. Maxwell on September 25, 2006. Consequently, the respondent was directed to file a response on the merits of the petitioner's claims.
On November 20, 2006, the respondent filed an answer to the petition in which he generally denies that any violation of the petitioner's rights has occurred. In addition, the respondent also filed a Motion to Dismiss and a Motion for Summary Judgment.
On March 9, 2007, the petitioner filed an Objection to State's Motion to Dismiss and Motion for Summary Judgment and Petitioner's Motion for Investigator.
This case is before the undersigned for a Report and Recommendation on the pending motions.
In October 1999, the petitioner was indicted by the Circuit Court of Marion County, West Virginia, of two counts First Degree Sexual Assault of a person less than 11 years old in violation of W.Va.Code § 61-8B-3, two counts Sexual Abuse by a Parent, Guardian or Custodian in violation of W.Va.Code § 61-8D-5(a), and two counts Incest in violation of W.Va.Code § 61-8-12.1 See Respondent's Exhibit 1 (dckt. 32-2) ). The petitioner pled not guilty and attorney Scott Shough was appointed to represent him. Resp. Ex. 12 at 2. The case against the petitioner proceed to trial on April 11, 2000. Id.; Resp. Ex. 34. However, upon the petitioner's motion, a mistrial was declared and a new trial was ordered. Id. A short time later, the court granted a motion for change of venue and the case was moved to Morgan County, West Virginia. Id.; Resp. Ex. 38.
On July 27, 2000, Mr. Shough filed a motion requesting permission to withdraw as counsel. Resp. Ex. 34 at 2; Resp. Ex. 35. In the motion, Mr. Shough asserted that the petitioner was not satisfied with his defense strategy and that the petitioner would not cooperate in his defense if Mr. Shough was not removed. Id. In addition, Mr. Shough asserted that the petitioner was not happy with his representation thus far and that irreconcilable differences existed between himself and the petitioner. Id. Therefore, Mr. Shough felt that he could no longer effectively represent the petitioner and requested permission to withdraw as counsel. Id. On August 2, 2000, Mr. Shough's motion was granted and he was relieved of all further responsibility in the case. Resp. Ex. 35. However, prior to granting Mr. Shough's motion, the Court informed the petitioner that his trial date would not change and voiced concern over the period of time in which new counsel would have to prepare the case for trial. Id. at 21-22. Thus, the trial court required the petitioner to waive any problems that may occur due to the change in counsel at such a late stage of the case. Id at 22. Petitioner accepted such waiver against "his better judgment." Id. at 22. G. Patrick Stanton was subsequently appointed as petitioner's new counsel. Resp. Ex. 12 at 3.
On August 9, 2000, Mr. Stanton filed a motion for a continuance of the petitioner's September trial date. Id. The trial court held a hearing on the motion at which Mr. Stanton explained that since accepting the petitioner's case, several other matter have come up, including two federal appointments. Resp. Ex. 36 at 2. Mr. Stanton further explained that in one of those federal cases, a trial was scheduled for the 7th of September and that, the other federal case was likely to be set for trial in early October. Id. Additionally, Mr. Stanton stated that he would also be working on an interlocutory appeal in one of those cases. Id. at 3. Because he had only just started to go through the petitioner's file, and had only just received the transcripts from the petitioner's first trial, Mr. Stanton requested that the petitioner's case be continued until the next term. Id. at 2-3.
The trial judge, however, stated that the petitioner's case would proceed as scheduled and that if Mr. Stanton did not feel he could effectively represent the petitioner in light of his other commitments, the court would entertain a motion to withdraw. Id. at 3. Mr. Stanton stated that such was the case, but that if the Court were to order him to continue to trial on the set date, he would do his very best. Id. at 4-5. The Court construed this request as a motion to withdraw and granted the request.2 Resp. Ex. 12 at 3.
On August 31, 2000, the Court appointed Eric Wildman to represent the petitioner. Id. Mr. Wildman also filed a motion for continuance. Id. The trial court held a hearing on the motion at which Mr. Wildman argued that issues had arisen during his preparation of the petitioner's case which cannot be addressed within the time frame set by the Court. Resp. Ex. 37 at 4. At that time, there were approximately three weeks left before the petitioner's trial. Id. at 5. The trial court, however, held fast and denied the motion. Id. at 6. In denying the petitioner's motion, the trial court addressed the relevant' factors for assessing claims of inadequate time to prepare3 and found that those factors did not weigh in favor of granting a continuance. Id. at 6-10.
Petitioner's retrial commenced on September 26, 2000. Resp. Ex. 12 at 3; Resp. Ex. 38. On September 28, 2000, the jury returned a verdict of guilty on, all six counts. Id. On November 27, 2000, the petitioner was sentenced to 15-35 years on Counts One and Two, 5-15 years on Count Three, 10-20 years on. Count Four, and 5-15 years on Counts Five and Six. Resp. Ex. 29. All sentences to run consecutively for a total sentence of 55-135 years. Id.
On June 7, 2001, the petitioner appealed his conviction and sentence to the West Virginia Supreme Court of Appeals ("WVSCA"). Resp. Ex. 4. The petitioner asserted the following grounds on appeal:
(1) The Circuit Court erred in permitting the, State of West Virginia to introduce collateral evidence of the defendant's prior wrongful acts pursuant to Rule 404(b) of the West Virginia Rules of Evidence;
(2) The trial court erred in denying the defendant's request for an...
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