White v. Searls

• Court: U.S. District Court — Southern District of West Virginia
• Writing for the Court: Omar J. Aboulhosn, United States Magistrate Judge
• Decision Date: 07 February 2023
• Docket Number: Civil Action 2:21-00523
• Citation: White v. Searls, Civil Action 2:21-00523 (S.D. W.Va. Feb 07, 2023)
• Parties: LARRY S. WHITE, II, Petitioner, v. SHELBY SEARLS, Respondent.

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LARRY S. WHITE, II, Petitioner, v. SHELBY SEARLS, Respondent.

Civil Action No. 2:21-00523

United States District Court, S.D. West Virginia, Charleston Division

February 7, 2023

PROPOSED FINDINGS AND RECOMMENDATION

Omar J. Aboulhosn, United States Magistrate Judge

Pending before the Court is Respondent's “Motion to Dismiss and for Summary Judgment” (Document No. 16), filed on April 15, 2022. By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 4.) Having thoroughly examined the record in this case, the undersigned respectfully recommends that the District Court grant Respondent's “Motion to Dismiss and for Summary Judgment” (Document No. 16).

PROCEDURAL HISTORY

A. Criminal Action No. 08-F-10:

On February 26, 2008, the Grand Jury of Jackson County, West Virginia, returned an Indictment against Petitioner charging him with one count of first degree murder in violation of W.Va. Code § 61-2-1 (Count One) and one count of conspiracy to commit first degree murder in violation of W.Va. Code § 61-10-31 (Count Two). (Document No. 9-1.) On April 18, 2008, Petitioner filed his “Notice of Intent to Rely on Defense of Defendant's Mental Condition.”

(Document No. 17-2.) On December 20, 2008, following a five-day jury trial, Petitioner was convicted of both first degree murder and conspiracy to commit murder. (Document Nos 9-2 and 17-17.) The jury made a recommendation of mercy. (Id.) On December 22, 2008, the Circuit Court sentenced Petitioner to life with mercy as to his conviction for first degree murder and not less than one year nor more than five years as to his conspiracy conviction. (Document No. 9-3.) The sentences were ordered to run consecutively to each other. (Id.)

On February 20, 2009, Petitioner, by counsel, filed a “Renewed Motion for New Trial Filed in Light of Post-Trial Disclosure to Defendant of Material That Should Have Been Disclosed to Defendant Prior to Trial Pursuant to Brady v. Maryland.” (Document No. 9-4.) On July 23, 2009, Petitioner, by counsel, filed an “Amended Renewed Motion for New Trial Filed in Light of PostTrial Disclosure to Defendant of Material That Should Have Been Disclosed to Defendant Prior to Trial Pursuant to Brady v. Maryland.” (Document No. 9-5.) By Order filed on September 25, 2009, the Circuit Court denied the above Motions. (Document No. 9-6.)

On February 1, 2010, Petitioner, by counsel, Matthew L. Clark filed a Petition for Appeal with the Supreme Court of Appeals of West Virginia (“SCAWV”). (Document No. 9-9.) In his appeal, Petitioner raised the following assignments of error:

1. The trial court erred in failing to strike two prospective jurors for cause, Michelle Lemon and Cassia Scott, upon motion of Petitioner's counsel based upon various answers given by the prospective juror in voir dire.

2. The trial court erred in not granting Petitioner's Motion for Judgment of Acquittal made at the close of the State's case in chief and renewed prior to entry of the jury's verdict as the evidence on which jury reached a verdict of guilty on the charges of murder in the first degree and conspiracy to commit a felony was insufficient as a matter of law for a reasonable jury to find that the Petitioner acted with premeditation, deliberation or a specific intent to kill the alleged victim.

3. The trial court erred in admitting evidence that was fruit of an unlawful search of a cellular telephone owned by the Petitioner, Larry S. White, II, and erred in its holding that Petitioner did not maintain a legitimate, reasonable expectation of privacy in the electronic data of the cellular telephone. Said unlawful search produced evidence that [sic] provided a foundation to obtain further information including search warrants. Absent the initial unlawful search and the fruits thereof, little, if any, evidence was present supportive of the convictions for murder in the first degree or conspiracy to commit a felony-murder in the first degree.

4. The trial court erred in admitting evidence in violation of Rule 801(d)(2)(E) of the West Virginia Rules of Evidence absent a proper foundation for admission of the statements of alleged co-conspirator.

5. The trial court erred in failing to grant the Appellant's Amended Renewed Motion for New Trial Filed In Light Of Post-Trial Disclosure to Defendant of Material That Should Have Been Disclosed to Defendant Prior to Trial Pursuant to Brady v. Maryland.

6. The trial court erred in denying Petitioner's Motion for New Trial as the cumulative error in Petitioner's trial and the insufficiency of the evidence supportive of verdicts of murder in the first degree and conspiracy to commit a felony mandated that a new trial should have been granted.

7. The trial court erred in denying Petitioner's Motion for New Trial as cumulative error present in the pretrial, trial, and post-trial proceedings mandated that a new trial be granted.

(Id.) On February 1, 2010, the SCAWV granted the Petitioner's Petition for Appeal. (Document No. 9-10.) On June 14, 2010, Petitioner filed his Brief. (Document No. 9-11.) On August 11, 2010, the State filed its response brief. (Document No. 9-12.) On February 10, 2022, the SCAWV affirmed Petitioner's conviction and sentence. State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011)) (“White I”).

B. First State Habeas Petition (Case No. 11-C-29):

On March 3, 2011, Petitioner, acting pro se, filed his Petition for Writ of Habeas Corpus in the Circuit Court of Jackson County. (Document No. 9-14.) Subsequently, the Circuit Court appointed Shawn D. Bayliss as habeas counsel. (Id.) On January 20, 2014, Mr. Bayliss filed an Amended Habeas Petition on behalf of Petitioner. (Document No. 16-20.) In the Amended Petition, Petitioner asserted the following grounds for relief:

1. Petitioner was denied effective assistance of counsel at critical stages of the proceedings in the underlying criminal matter, in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article III §§ 10 and 14 of the West Virginia Constitution. This denial deprived him of due process and gave rise to grave defects in pretrial strategy, plea negotiations, and the Petitioner's understanding of the nature and possible consequences of the proceedings against him.

2. The Petitioner believes that the pre-trial publicity in the Jackson County area was so great that it prevented him from being able to impanel a fair and impartial jury.

3. The Petitioner believes that his rights have been violated such that he has been unfairly punished for the trial court imposing against him consecutive sentences for the same transaction such that it is an unfair and unjust punishment for him to be required to serve additional time for what is essentially the same offense.

4. The Petitioner believes that his right to a fair trial were greatly prejudiced by the jury being privileged of his confession to the crimes herein. The alleged confession made by the Petitioner was coerced, and therefore cannot be a valid basis for his conviction. In order for this Court to consider whether or not a confession was coerced, the Court should conduct an examination based upon the totality of the circumstances State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994). Mr. White made a confession only after law enforcement officers had traveled to the State of Indiana and extradited him back to Jackson County, West Virginia. During the course of a six (6) hour interview, Mr. White ultimately confessed to killing the victim. Only after being thoroughly intimidated for such a protracted period of time, did he confess. He has no recollection of being properly advised of his Miranda rights. At no time would Mr. White had [sic] an expectation that he would be free to leave upon returning to West Virginia. The coercive atmosphere created by the closed quarters travel and six (6) hours of investigation without an attorney present was designed to extract an involuntary confession from the Petitioner, and therefore, the guilty pleas should be vacated.

5. Petitioner was denied a fair trial by the suppression of helpful evidence by the prosecutor in violation of Brady v. Maryland, 373 U.S. 83 (1963) and State v. Youngblood, 650 S.E.2d 119 (2007).

6. The Petitioner believes that the underlying conviction should be vacated as his trial counsel failed to obtain, investigate, review and challenge the composition of the grand jury or its procedures.

7. The Petitioner believes that the underlying conviction should be vacated as his trial counsel's refusal to subpoena certain witnesses and records.

8. The Petitioner believes that the underlying conviction should be vacated and a new trial granted as the Court violated his Constitutional rights by making incorrect rulings on evidentiary issues. This is made manifest in the Court's denying his renewed Motion for New Trial without hearing any testimony and thus denying Petitioner the opportunity to sufficiently test the new evidence and present his case.

9. The Petitioner believes that the underlying conviction should be vacated because of inappropriate statements by the trial judge.

10. The Petitioner believes that the underlying conviction should be vacated because of inappropriate statements of the prosecutor.

11. The Petitioner believes that the underlying conviction should be vacated as there was not sufficient evidence presented at the trial of his case to support the jury's findings of guilt.

12. The Petitioner believes that the underlying conviction should be vacated as he received a severer sentence than he reasonably expected.

13. The Petitioner believes that the

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