Tesack v. Trent
| Decision Date | 11 August 1998 |
| Docket Number | Civil Action No. 2:97-1132. |
| Citation | 22 F.Supp.2d 540 |
| Parties | Franklin V. TESACK, Petitioner, v. George TRENT, Warden, Mount Olive Correctional Complex, Respondent. |
| Court | U.S. District Court — Southern District of West Virginia |
Franklin V. Tesack, Mount Olive, WV, pro se.
Darrell V. McGraw, Jr., Attorney General of W.Va., Dawn E. Warfield, Assistant Attorney General, Charleston, WV, for respondent.
Pending are Petitioner Tesack's objections to the Report-Recommendation filed by the Honorable Jerry D. Hogg, United States Magistrate Judge, as well as Tesack's "Consolidated Traverse and Motion for Summary Judgment in response to Respondent's Answer, Motion to Dismiss and Motion for Summary Judgment, and Memorandum in support thereof," treated as a motion for summary judgment. This action was referred to Judge Hogg, who has submitted his proposed findings of fact and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge filed his Report-Recommendation on July 2, 1998, and Tesack filed his objections to the Report-Recommendation on July 16, 1998. Having reviewed de novo those portions of the Magistrate Judge's Report-Recommendation to which Tesack objects, the Court concludes that the objections are without merit. Consequently, the Court adopts and incorporates the Report-Recommendation with the following modifications.
Tesack objects that he was not advised of his right to file a response to the dispositive motions or of the danger of not responding, citing Davis v. Zahradnick, 600 F.2d 458 (4th Cir.1979), and Roseboro v. Garison, 528 F.2d 309 (4th Cir.1975). These cases state that a pro se plaintiff, litigating a 42 U.S.C. § 1983 claim, must be advised of his right and responsibility to respond to a dispositive motion. The requirement has not been applied in habeas corpus suits filed under 28 U.S.C. § 2254.
Although the Court believes there is no Roseboro requirement in habeas actions, there is scant support for a similar proposition. In Allison v. Blackledge, 533 F.2d 894 (4th Cir.1976), aff'd, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), a habeas action, the Fourth Circuit stated:
If the state moves for summary judgment ... and offers affidavits and other proof that the petitioner's claim is lacking in merit, a pro se petitioner may be required, after being advised of his rights and how to proceed, to offer counter affidavits or other proof to establish that material facts are genuinely disputed before he is afforded an evidentiary hearing. If, in such a situation, the petitioner fails to respond and offers no reasonable explanation why he cannot respond, summary judgment may properly be entered against him.
Id. at 897 (emphasis added).1 In an abundance of caution, the Court considers de novo Tesack's responsive motion for summary judgment.
In so doing, the Court is mindful of the applicable standard of review.
As a prerequisite to obtaining habeas relief under amended Section 2254(d)(1), a petitioner must demonstrate that the state court's adverse adjudication of the merits of his federal claim was "contrary to" or an "unreasonable application of" clearly established law as determined by the Supreme Court.
...
... If a state court decision is in square conflict with a precedent (Supreme Court) which is controlling as to law and fact, then the writ of habeas corpus should issue; if no such controlling decision exists, the writ should issue only if the state court's resolution of a question of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant Supreme Court precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts. In other words, habeas relief is authorized only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable.
Green v. French, 143 F.3d 865, 869-70 (4th Cir.1998).
In light of the highly deferential standard of review, the Court finds Tesack's claims are without merit. Two of the claims warrant discussion.
First, Tesack claims he received ineffective assistance of counsel because his defense attorney at trial had a conflict of interest. To state a claim that requires reversal of a conviction, Petitioner must show that his counsel's performance was deficient and that the deficiency was so "serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court defined prejudice by stating, Id. at 694, 104 S.Ct. 2052.
Tesack argues his attorney, Paul Camilletti, had a conflict of interest because, while he was representing Tesack, Camilletti was also a Special Assistant Attorney General in Marshall County. The Supreme Court has stated, "In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). If the defendant can establish both the actual conflict and that such conflict adversely affected the attorney's performance, then prejudice is assumed and the defendant is entitled to a new trial. Id. at 346-50, 100 S.Ct. 1708.
Here, Tesack has adequately stated a possible conflict of interest; indeed, the trial court held a hearing on the subject in which it recognized the situation as a potential conflict of interest, clarified Camilletti's specific, limited role as a Special Assistant Attorney General investigating a prison riot, and verified that Camilletti's co-counsel, Gary Sacco, was not also operating in such a role. See Ex. O, Resp't Mot. By Memorandum Opinion and Order, the Circuit Court made specific findings of fact and ruled there was no conflict of interest and Tesack would not be prejudiced by Camilletti's appointment.
It is unlikely Camilletti operated under an actual conflict. As the Magistrate noted, Camilletti's role as a Special Assistant Attorney General in Marshall County was restricted only to working on cases dealing with a local prison riot in a different facility from the one in which Tesack was incarcerated. Also, Camilletti assumed that role shortly before the trial began and had not completed any substantial tasks during his representation of Tesack. See Ex. D at 15, Resp't Mot. Moreover, even if this were an actual conflict, Tesack has not demonstrated that such conflict "adversely affected the attorney's performance." Consequently, this claim2 of ineffective assistance of counsel fails because the state court adjudication was neither "contrary to" nor an "unreasonable application of" Supreme Court precedent.
Second, Tesack alleges he was denied a fair trial because the prosecutor engaged in unethical and unlawful acts by not fully disclosing the terms of witnesses' plea agreements and by withholding exculpatory evidence. The Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "Evidence is `material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a `reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (citing Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.); id. at 685, 105 S.Ct. 3375 (White, J., concurring in part and concurring in judgment)). A "reasonable probability" of a different result is shown when the government's failure to disclose evidence "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (citing Bagley, 473 U.S. at 668, 105 S.Ct. 3375). "[T]he Brady rule does not apply if the evidence in question is available to the defendant from other sources." United States v. Wilson, 901 F.2d 378, 380 (4th Cir.1990) (quoting United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 184, 93 L.Ed.2d 118 (1986)).
Neither ground alleged by Tesack is sufficient under the standard of review. First, Tesack alleges the prosecutors failed to disclose all the terms of the witnesses' plea agreements. Although copies of the plea agreements were disclosed to the defense, Tesack argues the plea agreements granted the witnesses immunity for more crimes than were stated on the face of the agreements. Tesack argues:
A cursory review of those plea agreements, demonstrate the majority of paragraphs contained therein, make reference to specific criminal offenses but ¶ 11 indicates the terms of the agreements involved other criminal offenses that the witnesses apparently received immunity on, but were not specifically disclosed therein or ever provided to Petitioner.
Tesack's Consolidated Traverse at 29. By his own words, Tesack reveals that the plea agreements signaled that they did not state the entirety of the deal struck. Tesack does not dispute that the witnesses were extensively cross-examined regarding their plea agreements. Again, "the Brady rule does not apply if the evidence in question is...
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Toth v. United States, 3:17-cv-653-RJC
...that there was no reasonable probability of a different outcome but for counsel's perceived deficiency. See, e.g., Tesack v. Trent, 22 F.Supp.2d 540, 549 (S.D.W. Va. 1998) (in a § 2254 case, counsel was not ineffective for presenting a coherent and persuasive theory of defense that was simp......