Ward v. Clark

Decision Date09 April 2013
Docket NumberCIVIL ACTION NO. 3:12-07928
PartiesMARK DELANE WARD, Petitioner, v. MIKE CLARK, Administrator, Western Regional Jail; Respondent.
CourtU.S. District Court — Southern District of West Virginia
MEMORANDUM OPINION AND ORDER

Pending before the Court is Petitioner Mark Delane Ward's Objections (ECF No. 7) to the Magistrate's Proposed Findings and Recommendations (ECF No. 6). For the reasons stated below, Petitioner's Objections (ECF No. 7) are DENIED, and the Magistrate's Proposed Findings and Recommendations (ECF No. 6) are ADOPTED in full. Additionally, the Court DENIES Mr. Ward's three motions for miscellaneous relief (ECF Nos. 10, 11, 12).

Statement of Facts

Mr. Ward was arrested on November 30, 2011, pursuant to an outstanding warrant for second-degree sexual assault. Mr. Ward made an initial appearance before a Cabell County magistrate judge, and a preliminary hearing was scheduled for December 9, 2011. Because he was unable to post bond, he was detained at Western Regional Jail. Upon arriving for the preliminary hearing, according to Mr. Ward, he was told that "I had been indicted and my case was dismissed," and so the preliminary hearing was canceled. Pet. at 2, ECF No. 1. He was returned to Western Regional Jail pending trial.

On November 19, 2012, Mr. Ward filed a pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241. ECF No. 1 (hereinafter "Petition" or "Pet."). Mr. Ward raises four grounds for relief. First, he argues that he was improperly denied his preliminary hearing under West Virginia Rule of Criminal Procedure 5(c), because he cannot be indicted after the preliminary hearing has been scheduled. Id. at 6. He claims that "if I had competent representation I would have been released a long time ago[.] I also had evidence I wanted submitted at that preliminary hearing and wasn't able to do so," which allegedly violated his Sixth Amendment right to counsel. Id. at 7. Second, Mr. Ward argues that the merge order1 entered by the Cabell County Circuit Court "invaded the jurisdiction of the magistrate court," in violation of West Virginia Constitution Article VIII, § 6 and Article III, § 4. Id. Third, Mr. Ward argues that the record is unclear as to what date he was indicted on, and that he should have been released from custody when his case was dismissed. Id. Fourth, he argues that he "asked the Courts to challenge the indictment under West Virginia Rule of Criminal Procedure 6(b)1, 2," which was denied, and "[a]ny evidence I've gotten from the courts have been police reports[.] I haven't received any sworn testimony from the state[']s witness to be presented to the grand jury violating W Va Code 52-2-8." Id. at 8. He requests that he be released from custody and that his case be dismissed. He also requests that the Court expunge DNA testing that occurred on March 15, 2012.

Magistrate Judge Cheryl A. Eifert issued Proposed Findings and Recommendations ("PF&R") on December 18, 2012, recommending that Mr. Ward's Petition be dismissed. ECF No. 6. The PF&R explained that the federal court should abstain from involvement in this state case because all three prongs of the Fourth Circuit's Martin Marietta test were met. See MartinMarietta Corp. v. Maryland Comm'n on Human Relations, 38 F.3d 1392 (4th Cir. 1994). Even if federal abstention was not appropriate, the magistrate found that Mr. Ward would not be entitled to relief because his underlying legal arguments regarding the preliminary hearing and merge order were unpersuasive. The magistrate also explained that the discrepancy in the date of his indictment was due to clerical delay and did not impact his case, that Ward could still possibly receive his grand jury testimony prior to trial, and that there were no grounds for the magistrate to inquire into the sufficiency of the indictment. Furthermore, the federal court did not have the power to expunge the DNA test.

Mr. Ward timely filed objections to the PF&R. ECF No. 7 ("Objections"). He argues in these objections that the Martin Marietta test does not favor abstention, "mainly [as] to the third prong." Objections at 1. Furthermore, he objects to the magistrate's interpretation of West Virginia Rule of Criminal Procedure 5(c), and points to the Initial Appearance Rights Statement, form SCA-M312-1, in support of his right to a preliminary hearing. Id. at 1-2. Mr. Ward also argues that the state magistrate set bond in his case, but that only the circuit court had the power to do so based on the recitation of rights found in the form. Id. at 2-3. He additionally claims that his appearance in circuit court 20 days after his initial appearance violated the Fourteenth Amendment. Id. at 3. He states that the merge order was a violation of law, and that although the circuit court stated there was no hearing, "a hearing had to have been held to enter the merger order." Id. Additionally, he argues that because his case was dismissed, his continued detention constitutes an unlawful arrest. Id. Furthermore, he claims that he asked to challenge the indictment on February 15, 2012, his request was denied, and he "believe[s] this hearing never took place." Id. at 6. He again claims that he did not receive requested sworn testimony, and asks for his DNA testing to be expunged.

In Section I, the Court will briefly discuss the standard of review applicable to the PF&R. In Section II, the Court will address abstention under the Martin Marietta test. In Sections III through VII, the Court will discuss Mr. Ward's four grounds for his Petition, including his objections to the magistrate's treatment of those grounds. In Section VIII, the Court will address arguments raised in Mr. Ward's Objections but not in his Petition. In Section IX, the Court will discuss Mr. Ward's three miscellaneous motions, filed subsequent to his objections. Lastly, in Section X, the Court will address the certificate of appealability.

I. Standard of Review

This Court's review of the magistrate's proposed findings and recommendations to which Petitioner objects is de novo. 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."). Therefore, this Court will review de novo the magistrate's determination that the Martin Marietta test favors abstention, and the magistrate's determination regarding the four grounds underlying Mr. Ward's Petition.

II. Abstention Pursuant to the Martin Marietta test

The U.S. Supreme Court explained in Younger v. Harris that federal courts should not intervene in state criminal proceedings unless certain extraordinary circumstances are present. 401 U.S. 37 (1971). As elaborated by the Fourth Circuit, "federal courts should abstain from the decision of constitutional challenges to state action, however meritorious the complaint may be, 'whenever [the] federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.'" Cinema Blue of Charlotte, Inc. v. Gilchrist,887 F.2d 49, 52 (4th Cir. 1989) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 237-38 (1984)). Furthermore, "[i]n Younger and its progeny, the Supreme Court generally has found abstention appropriate if the following three-pronged test is met: 1) there are ongoing state judicial proceedings; 2) the proceedings implicate important state interests; and 3) there is an adequate opportunity to raise federal claims in the state proceedings." Martin Marietta, 38 F.3d at 1396 (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).2 These three prongs together are known as the Martin Marietta test.

Mr. Ward argues in his objections that the Martin Marietta test does not favor abstention, "mainly [as] to the third prong." Objections at 1. After reviewing this determination de novo, this Court agrees with the magistrate, and finds that the Martin Marietta test is met—including as to the third prong—and this Court should therefore not intervene in Mr. Ward's ongoing state court proceedings. The first prong is met because there are indeed ongoing state judicial proceedings against Mr. Ward. See Docket Sheet, Case No. 11-F-443, Cabell County Circuit Court (case opened Dec. 6, 2011). As for the second prong—implication of important state interests—the Fourth Circuit has held that states have a significant interest in preventing others from violating their criminal laws. Nivens v. Gilchrist ("Nivens I"), 319 F.3d 151, 154 (4th Cir. 2003) (citation omitted). Furthermore, another significant state interest is the "efficient operation of [the state's] criminal justice system." Id. (quoting Cooper v. Oklahoma, 517 U.S. 348, 367 (1996)). Therefore, the second prong is met in this case.

For the third prong, the Court considers whether Mr. Ward has an adequate opportunity to raise federal claims in the state criminal proceedings. The Fourth Circuit has noted that "ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights." Gilliam v. Foster, 75 F.3d 881, 904 (4th Cir. 1996) (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)) (stating that one exception to this general rule, not applicable to the instant case, is when a petitioner is arguing a violation of the Fifth Amendment's Double Jeopardy Clause). An opportunity to raise federal claims on the state level must not be confused with achieving success on those federal claims. Indeed, "[a]bstention does not suddenly become improper simply because Appellants lost on the merits in the state court" or because an adverse ruling in state court is anticipated. Nivens v. Gilchrist ("Nivens II"), 444 F.3d 237, 243 (4th Cir. 2006) (citing ...

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