Surbaugh v. Sallaz

• Decision Date: 23 June 2022
• Docket Number: Civil Action 1:20-CV-235
• Parties: JULIE ANN SURBAUGH, Petitioner, v. J.D. SALLAZ, Superintendent, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

JULIE ANN SURBAUGH, Petitioner,
v.
J.D. SALLAZ, Superintendent, Respondent.

Civil Action No. 1:20-CV-235

United States District Court, N.D. West Virginia

June 23, 2022

Bailey Judge.

REPORT AND RECOMMENDATION

JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

On October 1, 2020, petitioner, acting pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pending before this Court is a Motion to Dismiss [Doc. 46], filed March 29, 2022. The matter is now pending before this Court for a review and Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule of Prisoner Litigation Procedure (“LR PL P”) 2. For the reasons that follow, the undersigned recommends the Motion be denied and this case be stayed to allow petitioner to fully exhaust her unexhausted claims in state court.

II. FACTUAL AND PROCEDURAL HISTORY

A. Conviction, Sentence, and Direct Appeals

As summarized by the Supreme Court of Appeals of West Virginia (“SCAWV”), In 2010, petitioner was indicted in the Circuit Court of Webster County for the murder of her husband, Michael Surbaugh, who was having an extramarital affair. Following petitioner's conviction by a jury for first-degree murder, the circuit court sentenced petitioner to a life term of incarceration

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without the possibility of parole. In State v Surbaugh (“Surbaugh I”), 230 W.Va. 212, 737 S.E.2d 240 (2012), this Court reversed petitioner's conviction, ruling that “[u]pon retrial, ... petitioner is entitled to an instruction on good character, if such evidence is introduced.” Id. at 229, 737 S.E.2d at 257. After a second trial, a jury found petitioner guilty of first-degree murder, and she was sentenced to a life term of incarceration without the possibility of parole This Court affirmed petitioner's conviction following the second trial in State v. Surbaugh (“Surbaugh II”), 237 W.Va. 242, 786 S.E.2d 601, cert Denied, ___ U.S. ___, 137 S.Ct. 448, 196 L.Ed.2d 331 (2016).

Surbaugh v. Sallaz, No. 19-0739, 2020 WL 5653375, at *1 (W.Va. Sept. 23, 2020). The opinion affirming the conviction by the SCAWV was issued April 13, 2016. The Supreme Court of the United States denied a petition for writ of certiorari on November 7, 2016.

B. State Habeas Corpus Petition

The petitioner filed a Petition Under W.Va. Code § 53-4A-1 for Writ of Habeas Corpus in the Circuit Court of Webster County, West Virginia. See [Doc. 1-7]. The pro se petition contained thirty-five grounds for relief. The Circuit Court held a hearing on March 19, 2019, at which it dismissed twenty-one of the grounds raised, finding that they had been previously adjudicated at trial and on appeal, and petitioner voluntarily withdrew one ground. By order dated August 14, 2019, the Circuit Court dismissed the remaining claims.

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D. State Habeas Corpus Appeal

Petitioner appealed the Circuit Court's ruling to the SCAWV. In her brief, petitioner raised a single generic assignment of error: that the circuit court improperly denied her habeas petition. In an opinion dated September 23, 2020, the SCAWV affirmed the circuit court's ruling, finding that the circuit court did not abuse its discretion. [Doc. 46-16 at 3].

E. Federal Habeas Petition

On October 1, 2020, petitioner initiated this case by filing her Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. [Doc. 1]. The petition was not on this district's court-approved § 2254 form, and that the petition was 68 pages long. By Order dated October 9, 2020, this Court found that the petition did not conform to Rule 8 of the Federal Rules of Civil Procedure and this Court's Local Rules of Prisoner Litigation Procedure and directed petitioner to file the petition on the court-approved form. [Doc. 13]. The Court indicated that any memorandum in support was limited to no more than ten pages, and that petitioner could file a proper motion to exceed page limits if needed. [Id.]. On December 2, 2020, petitioner re-filed on the court-approved form. [Doc. 19]. On the same date, she filed a Motion for an Extension of Time to File Revised Petition. [Doc. 20]. On December 7, 2020, petitioner filed four more motions: a motion to exceed page limit, a motion to expand time, a motion to submit a brief in support of petition and expand time to do so, and a motion to correct page numbers. [Docs. 22-25]. On December 9, 2020, petitioner filed a Motion for Leave to Substitute [Doc. 26]. On the same day, this Court entered an Order dealing with a number of the motions: in particular, the Court granted in part a Motion for Leave to Exceed Page Limit [Doc. 22] and allowed petitioner to submit “part 2 of motion,” which was a 59-page

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continuation of the court-approved petition. That “part 2” is now attached at [Doc. 19-2]. That attachment elaborates on the four grounds presented in the petition an adds an additional eleven grounds. The grounds presented in the petition and the addendum labeled “part 2” are as follows.

First, petitioner argues she was denied her due process rights because the trial court did not provide an instruction to the jury relating to blood spatter evidence. [Doc. 19 at 6]. Second, that her due process rights were violated because statements by the victim were admitted at trial. [Id., Doc. 19-2 at 4]. Third, that her due process rights were violated because the prosecution presented insufficient evidence. [Doc. 19 at 11]. Fourth, that the state presented insufficient evidence to overcome her claim of selfdefense. [Docs. 19 at 13, 19-2 at 9]. Fifth, that the medical examiner, Dr. Hamada Mahmoud, should not have been permitted to testify. [Doc. 19-2 at 10]. Sixth, that “in the second trial and second appeal [petitioner] had argued her statements on August 11 and 12, 2009 were not voluntary” because the Miranda waiver form she signed did not specify the crime she was under arrest for. [Doc. 19-2 at 17]. Seventh, that her trial counsel was ineffective. [Id. at 23-24]. Eighth, that her appellate counsel was...