LARRY HAYES, Petitioner, v. MARVIN PLUMLEY, Respondent.
CIVIL ACTION NO. 2:15-cv-15636
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION
September 30, 2016
Case 2:15-cv-15636 Document 20 Filed 09/30/16 Page 1 of 37 PageID #: 1984
Pending before the Court are Petitioner Larry Hayes’
This case involves a collateral attack by a state prisoner on his conviction pursuant to
A summary of the evidence presented at Petitioner‘s jury trial, as well as the factual and procedural history of his direct appeal and collateral challenge in state court, are set forth in detail in the PF&R and need not be repeated here. The § 2254 Petition sets forth four grounds of relief. Ground One alleges a violation of Petitioner‘s due process right to be free from a coerced confession. The remaining three grounds allege ineffective assistance of counsel arising from trial counsel‘s failure to properly cross-examine the pathologist who conducted the victim‘s autopsy (Ground Two), failure to litigate the issue of insufficient evidence (Ground Three), and failure to raise the preceding claims on direct appeal (Ground Four). After a review of the record and Petitioner‘s legal arguments, the magistrate judge recommended that this Court grant Respondent‘s motion for summary judgment (ECF No. 9) and dismiss this matter from the Court‘s docket. In his objections, Petitioner raises anew his arguments with respect to Grounds One, Two, and Three of the § 2254 Petition.
A. Review of Magistrate Judge‘s Findings and Recommendation
Pursuant to
B. Section 2254 Standard of Review
A federal court may grant habeas relief for a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A habeas claim has been “adjudicated on the merits” when it is “substantively reviewed and finally determined as evidenced by the state court‘s issuance of a formal judgment or decree.” Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999) (citation omitted). “The phrase ‘adjudication on the merits’ in section 2254(d) excludes only claims that were not raised in state court, and not claims that were decided in state court, albeit in a summary fashion.” Thomas v. Taylor, 170 F.3d 466, 475 (4th Cir. 1999); see also Harrington v. Richter, 562 U.S. 86, 98 (2011) (section 2254(d) applies even if the state court issued a summary decision unaccompanied by an explanation).
III. DISCUSSION
A. Voluntariness of Petitioner‘s October 4, 2010 Confession
The Court proceeds with review of Petitioner‘s due process claim by first considering the issue of exhaustion. Finding the claim unexhausted, the Court will nevertheless consider the claim on its merits.
i. Exhaustion and Procedural Bar
On October 4, 2010, and just one day following R.M.‘s death, Petitioner gave a statement to law enforcement in which he claimed that R.M. fractured her skull when he accidentally fell with her down the stairs in their home. The prosecution admitted the statement into evidence at Petitioner‘s trial. Petitioner now objects to the magistrate judge‘s conclusion that his October 4, 2010 statement to law enforcement was not the product of coercion.
Notes
As stated previously, a § 2254 habeas petitioner must exhaust available state court remedies before a federal district court can entertain his claims.
The Court finds that Petitioner‘s due process claim was not fairly presented to the state court and is therefore unexhausted. Though the October 4, 2010 statement to police serves as the factual predicate for the both claims, “ineffective assistance and due process are analytically distinct.” Medicine Blanket v. Brill, 425 Fed. Appx. 751, 754 (10th Cir. 2011); see Gattis v. Snyder, 278 F.3d 222, 237 (3d Cir. 2002) (finding due process claim unexhausted at the federal level where it had been presented to the state court as an ineffective assistance claim); see also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (noting Fourth and Sixth Amendment claims “are distinct, both in nature and in the requisite elements of proof“). The state court evaluated Petitioner‘s coercion argument solely through the lens of ineffective assistance of counsel and never considered the merits of Petitioner‘s related due process claim. See Baldwin v. Reese, 541
This conclusion does not end the matter, however, because “[a] claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)). Stated differently, “[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer available to him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991) (citations omitted). In such a case, the procedural bar “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.” Id. (internal quotation marks omitted); Dretke v. Haley, 541 U.S. 386, 388 (2004) (“[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default.“).
Under West Virginia law, a habeas claim that has not been presented to state court has generally been defaulted. See
ii. Merits of Due Process Claim
An involuntary statement violates the Due Process Clause incorporated in and held against the states by the
Petitioner claims that his limited admission to his role in R.M.‘s death was coerced by law enforcement.3 Detectives coaxed the statement at issue from him during a two and one-half hour interview held on October 4, 2010, the day following R.M.‘s death. The interview took place in the kitchen of the South Charleston Police Station, where Petitioner agreed to be interviewed, acknowledged his understanding that he was not under arrest and free to leave at any time, and executed a waiver of his Miranda rights.4 (ECF No. 9-2 at 130–31.) Petitioner was familiar with both the setting and his interviewers because he had given them an initial statement at the same location three days earlier. The interview began casually, with Petitioner offering a chronological
Given their view of the evidence, the detectives presented Petitioner‘s predicament in terms of two options: he could either continue to feign ignorance and, from his silence, be treated as a remorseless killer, or otherwise confess to an accident resulting from a brief fit of rage or lapse in judgment and receive mercy. As the interview proceeded, Petitioner became obviously intrigued by the idea that confession to an accidental injury could result in a less severe sentence. He asked the detectives if he would be “put away” if R.M.‘s injuries were accidentally inflicted. (ECF 9-2 at 154–55.) It is the detectives’ subsequent attempts to distinguish between an accidental, as opposed to a deliberately inflicted, injury which Petitioner claims amounted to coercion. He finds the following two portions of dialogue particularly objectionable:
Q: . . . If it‘s an accident, we would deal with it. Accidents happen all the time.
A: And you‘d still put me in jail.
Q: That‘s not true. If an accident happened, an accident happened. Accidents happen all the time. I investigate lots of accidents.
A: And do those people still do time?
Q. No. There‘s a difference between an accident and something with malice.
(ECF No. 9-2 at 155.) Later on, Petitioner again pressed the detectives to tell him the “best case scenario” if he admitted knowledge of the circumstances surrounding R.M.‘s death:
A: I‘m saying what is a judge going to do to me?
Q: I . . . I will tell you if we go in there and you tell him that this baby was a hundred percent fine . . . when you put her in the car seat[,] [a]nd you showed up ten minutes later with this much damage . . . they‘re gonna’ say you‘re just a fat liar and . . .
Q: I‘m saying that it‘s an accident.
A: . . . If it‘s a hundred percent an accident, it‘ll be a completely different story.
Q: That‘s what I want to know.
A: If it was a hundred percent an accident, you would probably be free to leave once it‘s dealt with. You might get charged with lying to us at the beginning of this because you . . . you had no . . . you shouldn‘t have done that.
(ECF No. 9-2 at 160–61.)
Reviewing this transcript, the magistrate judge concluded that while the interviewing detectives “certainly emphasized the positive aspects of Hayes providing a statement describing R.M.‘s death as accidental . . . the detectives never unambiguously promised that Hayes would receive a lesser sentence or would not be criminally charged for R.M.‘s death.” (PF&R at 39.) Petitioner disagrees, arguing that the detectives unequivocally promised him that “if he informed [them] of what they wanted to hear, they would allow him to leave.” (Objs. to PF&R at 1.)
Petitioner rightly notes that illusory promises of leniency may be sufficient to overbear the will of the criminal accused. United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (finding
A detective‘s truthful statements about a suspect‘s predicament “are not the type of ‘coercion’ that threatens to render a statement involuntary.” United States v. Pelton, 835 F.2d 1067, 1073 (4th Cir. 1987). The detectives arrived at the interview armed with evidence clearly pointing to Petitioner‘s culpability. Met with his incredible claim of ignorance, the detectives did not coerce his admission to an accidental event by merely pointing out the harsher reception he would face if he continued to deny the obvious. As the Supreme Court has recognized, “very few people give incriminating statements in the absence of official action of some kind.” Schneckloth, 412 U.S. at 224; see Williams v. Withrow, 944 F.2d 284, 289 (6th Cir. 1991) (“[W]e have no doubt that effective interrogation techniques require, to some extent, a carrot-and-stick approach to eliciting information from an uncooperative suspect.“). Moreover, drawing Petitioner‘s attention to the potential legal consequences of his actions was not patently coercive. “[T]elling the defendant in a noncoercive manner of the realistically expected penalties and encouraging him to
Furthermore, the Court simply does not accept Petitioner‘s assertion that he believed the detectives to be promising immediate release in exchange for an inculpatory statement. The detectives told Petitioner that regardless of the content of any confession, he would be processed, presented before a magistrate, and then left to “work it out with the prosecutor.” (ECF No. 9-2 at 156.) They acknowledged that his admission to any involvement in the child‘s death might result in him being “put away,” but that the “putting away part [would] be a lot worse for somebody who shows no remorse.” (ECF No. 9-2 at 157.) Petitioner‘s own statements during the interview prove that he was acutely aware of the risks before him and belie his current assertion that he inculpated himself with the belief that he would not be criminally charged. Immediately following their discussion of the difference between accidental and malicious acts, Petitioner remarked, “[y]ou‘re going to take me and process me any way it goes.” (Id. at 161.) The detective agreed, admitting that Petitioner‘s imminent arrest was “[m]ore than likely.” (Id.) Again, Petitioner acknowledged his understanding, stating, “[w]hen I leave here today, it‘s going to be in handcuffs.” (Id.) He even asked before offering the critical statement which one of the detectives would take him “downtown” for booking. (Id. at 164.)
Furthermore, even if the detectives’ statements highlighting the benefits of confessing to an accidental incident constituted implied promises of leniency, the surrounding circumstances do not indicate that Petitioner‘s “will [was] overborne or his capacity for self-determination critically impaired.” Umaña, 750 F.3d at 344. Petitioner maintained an awareness throughout the interview
In light of the countervailing contextual factors, the Court does not believe that the detectives’ suggestion that Petitioner would not serve prison time if R.M.‘s injuries were purely accidental overcame his capacity for self-determination. Therefore, the Court FINDS that Petitioner has not met his burden to demonstrate that his limited—and subsequently discredited—admission to injuring R.M. was involuntary.
B. Ineffective Assistance of Counsel Claims
The
Under the deficient-performance prong, the petitioner‘s burden is to “demonstrate that his counsel‘s performance fell below an objective standard of reasonableness.” Clagett, 209 F.3d at 380 (citing Strickland, 466 U.S. at 687). “[C]ounsel‘s performance will not be deemed deficient except in those relatively rare situations where, ‘in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.‘” Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690). In an effort to avoid “the distorting effects of hindsight,” Strickland, 466 U.S. at 689, a court reviewing an ineffective assistance of counsel claim “must apply a ‘strong presumption’ that counsel‘s representation was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689).
“Once a petitioner has established deficient performance, he must prove prejudice—‘a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” Winston v. Pearson, 683 F.3d 489, 505 (4th Cir. 2012) (quoting Richter, 562 U.S. at 104). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 694 (internal quotation marks omitted)). “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’ . . . The likelihood of a different result must be substantial, not just conceivable.” Id. at 104, 112 (quoting Strickland, 466 U.S. at 693). “In
“Surmounting Strickland‘s high bar is never an easy task[, and] [e]stablishing that a state court‘s application of Strickland was unreasonable under
i. Effectiveness of Counsel in Cross-Examination of Dr. Allen Mock
At the time of trial, Dr. Mock was employed as a deputy chief medical examiner at the West Virginia Office of the Chief Medical Examiner. (ECF No. 9-5 at 182; ECF No. 9-6 at 98–99.) He performed R.M.‘s autopsy on October 4, 2010. (ECF No. 9-5 at 189.) He testified at trial on behalf of the prosecution and opined to a reasonable degree of medical certainty that R.M.‘s skull fracture was the product of child abuse. (ECF No. 9-6 at 83.) Petitioner now claims that Dr. Mock was unqualified to perform autopsies under West Virginia law and that his trial attorney provided ineffective assistance by failing to identify and highlight Dr. Mock‘s vocational deficiencies on cross-examination. It appears uncontroverted that defense counsel “extensively questioned Dr. Mock about his qualifications, findings, and opinions.”6 (PF&R at 44.) Thus, Petitioner‘s argument on the “deficient performance” prong appears to be limited to the factual question of whether Dr. Mock was, in fact, qualified to perform autopsies on behalf of the State of West Virginia.
West Virginia law sets forth mandatory minimum qualifications for pathologists performing autopsies on behalf of the state medical examiner. There are two routes to qualification. By statute, the chief medical examiner may employ pathologists who either “hold[] board certification or board eligibility in forensic pathology or ha[ve] completed an American
Petitioner raised this argument in his state habeas petition, where it was rejected as non-meritorious by the state circuit court. In considering Petitioner‘s claim, the circuit court noted that the first method of employment qualification, board certification or eligibility, was inapplicable since Dr. Mock admitted that he was not board eligible in forensic pathology. This left the second method, that requiring completion of an American Board of Pathology fellowship, as the only option. See
AEDPA sets forth two “independent requirements” for review of state-court factual findings. See Miller v. Cockrell, 537 U.S. 322, 341 (2003).
AEDPA thus poses a formidable hurdle for a habeas petitioner challenging the correctness of a state court‘s factual findings. Nonetheless, the Court disagrees with the magistrate judge that the state court made a factual determination of this issue. The state court simply made no finding as to Dr. Mock‘s fellowship, and its summary conclusion that Petitioner “failed to establish that Dr. Mock was not qualified to perform an autopsy in West Virginia,” (ECF No. 9-1 at 141), does not suffice—particularly where, as discussed below, Petitioner requested an evidentiary hearing to develop his factual allegations. Section 2254(d) deference does not apply. Winston v. Kelly, 592 F.3d 535, 557 (4th Cir. 2010) (finding where state court “passed on the opportunity to adjudicate [the petitioner‘s] claim on a complete record,” the district court should not afford any deference to the state court‘s application of the Strickland standard).
1. Standard for Evidentiary Hearing
A related question is whether Petitioner has been prevented from developing evidence to undermine Dr. Mock‘s qualifications. In his objections, Petitioner claims that he has “consistently been trying to obtain counsel and a hearing” for the purpose of developing his theory that Dr. Mock was unqualified at the time of trial to perform autopsies. (ECF No. 16 at 2 (emphasis in original).) Petitioner did not request an evidentiary hearing in his
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
“The Supreme Court has held that the word ‘failed’ in the opening line of this section connotes fault.” Winston, 592 F.3d at 552 (citing Taylor, 529 U.S. at 431). Specifically, the Supreme Court stated that, “[u]nder the opening clause of
Nonetheless, “[f]ederal evidentiary hearings ought to be the exception, not the rule.” Kelly, 592 F.3d at 552 (citation omitted). Evidentiary hearings “are not ‘intended to provide a forum in which to retry state cases,’ but rather their ‘prototypical purpose [is] to fill a gap in the record or to supplement the record on a specific point.‘” Id. (alteration in original) (quoting Pike v. Guarino, 492 F.3d 61, 70 (1st Cir. 2007)). “[A]
From the state court post-conviction record originally provided, it appeared that Petitioner had not diligently sought to develop the factual basis for his claim in state court. There was no record evidence, for example, that Petitioner had requested discovery or an evidentiary hearing. However, in his brief appealing the circuit court‘s denial of his habeas petition to the West Virginia Supreme Court of Appeals, Petitioner cited previously-filed motions for appointment of counsel, for an expert witness, for a private investigator, and for an omnibus habeas corpus hearing, all of which he alleged the circuit court had essentially ignored. (ECF No. 9-2 at 5.) None of these motions were present in the record before this Court. By Order entered in this case on August 17,
These motions each constitute an attempt by Petitioner to factually develop his challenge to Dr. Mock‘s qualifications during the pendency of the state post-conviction proceeding. For example, in support of his motion for a private investigator, Petitioner alleged:
Petitioner has raised in his habeas corpus petition, the claim that the State Medical Examiner, at the time of the autopsy on R.M., did not possess the qualifications to be Chief Medical Examiner pursuant to West Virginia Code § 61-12-3(c) or the qualifications to perform autopsies pursuant to West Virginia Code § 61-12-3(c). . . . A private investigator is needed in the instant case to investigate and obtain the evidence needed to establish the qualifications of Doctor Mock at the time of his conducting the autopsy on R.M.
(ECF No. 19-1 at 9.) Respondent included with its supplementation an order from the state circuit court denying Petitioner‘s motion for appointment of counsel.10 (ECF No. 19-2.) It appears that the circuit court did not rule on the other motions, including Petitioner‘s motion for an evidentiary hearing. Further, the circuit court‘s order denying habeas relief does not mention, much less consider the necessity of, Petitioner‘s request for an evidentiary hearing.
The circuit court‘s oversight is particularly problematic because Rule 9(a) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings require the circuit court,
2. Petitioner‘s Entitlement to Evidentiary Hearing
“Even if the petitioner‘s claim is not precluded by
who has diligently pursued his habeas corpus claim in state court is entitled to an evidentiary hearing in federal court, on facts not previously developed in the state court proceedings, if the facts alleged would entitle him to relief, and if he satisfies one of the six factors enumerated by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 313 (1963).
Conway, 453 F.3d at 582. The six Townsend factors are: (1) the merits of the factual dispute were not resolved at the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason
First, the Court finds that because Petitioner raises a legitimate suspicion that Dr. Mock was not credentialed at the time of trial to perform autopsies for the state medical examiner but was not afforded a hearing to develop the issue, he satisfies at least one of the Townsend factors. See Fullwood, 290 F.3d at 681 (finding habeas applicant satisfied Townsend factors where state court had refused him an evidentiary hearing).
Second, the Court must consider where Petitioner has alleged facts that, if true, would permit him to prevail on his ineffective assistance claim. This places the Court back at the starting point to consider Petitioner‘s likelihood of satisfying Strickland‘s “deficient performance” and “prejudice” prongs. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. The Court begins by assuming that Dr. Mock did not meet minimum employment qualifications and then considers whether Petitioner can show prejudice resulting from his counsel‘s failure to bring this fact to the jury‘s attention.
In considering Strickland‘s prejudice prong, the Court must stress the limited implications of Petitioner‘s factual allegations. Accepting as true the allegation that Dr. Mock‘s fellowship was not an American Board of Pathology fellowship, Dr. Mock would have been unqualified at the time of trial to conduct autopsies on behalf of the State of West Virginia. Petitioner has presented no evidence, however, to show that Dr. Mock‘s failure to meet the employment qualifications for a particular office rendered him unfit to perform autopsies generally. To the
Even if Dr. Mock was unqualified to work in the Chief Medical Examiner‘s office, his crucial finding that R.M.‘s skull fracture was fresh, and more than likely inflicted while she was in Petitioner‘s sole care, was bolstered by the testimony of R.M.‘s treating pediatrician, Manuel Caceres, M.D., and by the testimony of R.M.‘s mother. Dr. Caceres presided over R.M.‘s medical care once she was admitted to the pediatric intensive care unit of Women and Children‘s Hospital on September 30, 2010. (ECF No. 9-7 at 150.) The trial court recognized him as an expert in
The testimony of R.M.‘s mother, M.B., also undermined Dr. Young‘s opinion and, in turn, lent credibility to Dr. Mock‘s conclusions. M.B. offered a crucial first-hand account of R.M.‘s fall from the living room stairs on September 24, 2010.12 M.B. testified that her daughter was sitting on the bottom step of the stairwell when M.B. called to her. As R.M. stood to respond to her mother, she fell backward and landed on her backside. (ECF No. 9-5 at 98.) A four-wheeler toy was present on the living room floor adjacent to the steps, and though M.B. admitted that her view of R.M.‘s fall was partially blocked by this toy, she testified that the four-wheeler did not move as her daughter fell. She added that she did not see or hear R.M. hit her head as she was falling. (Id. at 98.) Further, her description of R.M.‘s reaction to the fall was not consistent with that of a child who had just sustained a five-inch skull fracture. M.B. testified that her daughter cried briefly, but calmed immediately and “was fine.” (Id.) M.B. testified that apart from this
Petitioner‘s assertion that Dr. Mock was not qualified to perform autopsies on behalf of the West Virginia Medical Examiner‘s Office, if true, would not satisfy Strickland‘s prejudice prong. Even if the facts as Petitioner alleges them are true, the Court cannot find that a reasonable probability exists that the outcome of the trial would have been different. Strickland, 466 U.S. at 694. To receive an evidentiary hearing, Petitioner was required to allege facts in the
ii. Effectiveness of Counsel in Arguing Motion for Acquittal
Lastly, Petitioner challenges the magistrate judge‘s finding that the state court did not unreasonably apply Strickland by denying Petitioner‘s ineffective assistance of counsel claim relating to the sufficiency of the evidence. Here, the Court again sustains the position of the magistrate judge and denies Petitioner‘s claim.
Petitioner contends that his trial counsel failed to litigate the issue of insufficient evidence in his post-trial motion for judgment of acquittal. On habeas review, the West Virginia circuit court found “more than ample evidence” to support Petitioner‘s conviction and denied the ineffective assistance claim. (ECF No. 9-1 at 121–22, 17–18.) The West Virginia Supreme Court of Appeals adopted the lower court‘s findings and conclusion on the matter. (ECF No. 9-2 at 124.) Upon review of the record, the Court notes that the circuit court based its decision entirely on the prejudice prong and did not express discuss the performance prong. (ECF No. 9-1 at 142–44.) The Court therefore reviews the finding that Petitioner was not prejudiced with
Nonetheless, Petitioner fails to satisfy the deficient performance element, in part because he inaccurately portrays his trial counsel‘s post-trial arguments. Petitioner creates the impression that his counsel simply did not challenge the sufficiency of the evidence. The state record reveals otherwise. Trial counsel attacked the sufficiency of the evidence in both the renewed motion for acquittal and at the subsequent hearing.13 (ECF No. 9-1 at 7; ECF No. 9-10 at 72–73.) Admittedly, counsel‘s post-trial arguments as to insufficiency of the evidence were based predominantly on a juror affidavit acquired after the jury rendered its verdict. This particular juror, counsel argued, had been unpersuaded by the State‘s evidence and voted for a verdict of guilty simply because Petitioner was the last person alone with R.M. before the onset of the symptoms.
Counsel‘s arguments were not limited to the affidavit, however. He introduced the affidavit at the hearing by calling the trial court‘s attention to the motion for judgment of acquittal made by the defense following the close of the State‘s case-in-chief, during which time counsel had strenuously, and methodically, attacked the sufficiency of the State‘s evidence with regard to malice. (See ECF No. 9-8 at 13–19.) And in renewing this argument at the post-trial motions
AEDPA deference applies to the prejudice prong. Here, the Court finds that the state court reasonably determined the evidence to be sufficient to support Petitioner‘s conviction and therefore Petitioner was not prejudiced by any failure by counsel to argue the issue more expansively. Evidence is sufficient to support a conviction when “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt.” Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). Stated conversely, “[a] reviewing court may set aside the jury‘s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). In evaluating a sufficiency of the evidence challenge, whether in the context of a habeas proceeding or on direct appeal, the jury‘s verdict is entitled to deference.16
Petitioner‘s statutory offense of conviction provides:
If any parent, guardian or custodian shall maliciously and intentionally inflict upon a child under his or her care, custody or control substantial physical pain, illness or any impairment of physical condition by other than accidental means, thereby causing the death of such child, then such parent, guardian or custodian shall be guilty of a felony.
It is undisputed that Petitioner was R.M.‘s custodian and that R.M. was in his exclusive care, custody, and control between 8:00 a.m. and 2:00 p.m. on September 30, 2010.17 (ECF No.
At trial, the jury was presented with only two theories explaining R.M.‘s fatal injury: either R.M. suffered the skull fracture when she fell from the living room stair on September 24, 2010, or Petitioner inflicted the injury on the child on September 30, 2010 during the hours R.M.‘s mother was at work. Defense expert Dr. Young was the only witness to present evidence consistent with the first theory. The verdict indicates that the jury accepted the second theory as more persuasive. Their choice was thoroughly rational. Viewed in the light most favorable to the prosecution, Parker, 132 S. Ct. at 2152, the medical evidence more plausibly supports a theory of intentional injury. Both Dr. Mock and Dr. Caceres testified that a skull fracture as extensive
The plausibility of Dr. Young‘s theory was independently undermined by Dr. Caceres. Dr. Caceres testified that if a post-traumatic seizure occurred on September 30, 2010 as Dr. Young claimed, it would not have caused a cessation of breathing, would not have resulted in the severe, sudden brain swelling observed upon R.M.‘s admission to the hospital, and could not have accounted for the brain hemorrhaging observed in the hospital CT scan. (ECF No. 9-7 at 190–93.) Rather, Dr. Caceres opined to a reasonable degree of medical certainty that the injury to R.M.‘s skull occurred first. (ECF No. 9-8 at 4.) Dr. Mock‘s autopsy findings were all consistent with Dr. Caceres’ impressions. Though Petitioner may remain skeptical of Dr. Mock‘s qualifications, his opinion that R.M. suffered her injury while in Petitioner‘s care was supported both by the other medical expert opinion and by the eyewitness account offered by R.M.‘s mother of the September 24, 2010 fall. As explained above, Dr. Young‘s explanation for the head injury was simply factually inconsistent with the account of R.M.‘s mother, who insisted that R.M. did not hit her head when she fell on September 24. (ECF No. 9-5 at 98.) Altogether, the medical evidence accepted by the jury clearly pointed to a deliberately inflicted head injury that occurred shortly before Petitioner drove with R.M. to pick up her mother from work on September 30, 2010.
Critical evidence in support of the malice element also came from Petitioner himself. Petitioner gave a statement to law enforcement that he fell down five or six stairs with R.M. in his arms, and that she hit her head as he landed on top of her. The implausible story conflicted with the overwhelming medical testimony and was accepted by both sides as a fabrication. Still, the jury could reasonably have concluded from this statement that Petitioner was responsible for R.M.‘s injury, although unwilling to divulge the facts with accuracy. The jury also heard evidence, admitted as part of Petitioner‘s recorded interview with law enforcement, that he knew R.M. had suffered a head injury but did not call 911 and kept quiet at the hospital while emergency personnel furiously tried to diagnosis R.M.‘s condition. (ECF No. 9-2 at 166–67.) The jury could infer malice and intent from Petitioner‘s lie as well as his refusal to divulge the child‘s head injury to the treating physicians who were desperately trying to identify the cause of her distress and save her life. See State v. Fannin, 2015 WL 2364295, at *5 (W. Va. May 15, 2015) (memorandum decision) (finding the jury was able to infer malice from the defendant‘s fabricated and discredited account of the victim‘s injuries). The trial court reasonably found that sufficient evidence existed to support the malice element.
To conclude, the Court finds that Petitioner fails to show deficient performance on the part of his trial counsel in litigating the issue of insufficient evidence. Further, because the state court did not unreasonably apply Strickland in determining that Petitioner could not prove prejudice, the state court‘s overarching conclusion is entitled to deference. Accordingly, Petitioner‘s claim to ineffective assistance of counsel on this basis is DENIED.
For the foregoing reasons, the Court OVERRULES Petitioner‘s objections (ECF No. 16), ADOPTS the PF&R to the extent consistent with this Memorandum Opinion, (ECF No. 15), GRANTS Respondent‘s Motion for Summary Judgment (ECF No. 9), DISMISSES the
The Court has also considered whether to grant a certificate of appealability. See
As to the claim that his counsel rendered ineffective assistance in litigating the sufficiency of the evidence, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right and DENIES a certificate of appealability. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under
IT IS SO ORDERED.
ENTER: September 30, 2016
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE
[A] contention or contentions and the grounds in fact or law relied upon in support thereof shall be deemed to have been waived when the petitioner could have advanced, but intelligently and knowingly failed to advance, such contention or contentions . . . in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, unless such contention or contentions and grounds are such that, under the Constitution of the United States or the Constitution of this State, they cannot be waived under the circumstances giving rise to the alleged waiver.
There is no dispute that Dr. Mock, at the time [R.B.]‘s autopsy was performed, was not board certified in forensic pathology. However, Dr. Mock testified that he completed fellowship training in forensic pathology at the New Mexico University Office of the Chief Medical Investigator in Albuquerque. Dr. Mock also testified that he had testified as an expert witness in the field of forensic pathology in both New Mexico and West Virginia state courts and federal courts. . . . Dr. Mock‘s curriculum vitae clearly indicates that he served as a Forensic Pathology Fellow from July 2009 until June 2010. The Court FINDS Petitioner simply fails to establish that Dr. Mock was not qualified to perform an autopsy in West Virginia and fails to establish that Dr. Mock was not qualified as an expert witness.
(ECF No. 9-1 at 141.)