AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
LARRY S. WHITE, II
Petitioner,
v. CIVIL ACTION NO. 2:21-cv-00523
SHELBY SEARLS,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are Larry Samuel White’s Petition for Writ of Habeas
Corpus [ECF No. 2] and Respondent’s Motion to Dismiss and for Summary Judgment
[ECF No. 16]. This action was referred to the Honorable Omar J. Aboulhosn, United
States Magistrate Judge, for submission to this court of Proposed Findings and
Recommendation (“PF&R”) for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
Having reviewed each of the eleven grounds asserted by Mr. White in his Petition,
the magistrate judge submitted his PF&R. The judge found all eleven grounds to lack
merit and recommended that the court grant Respondent’s Motion and remove this
case from the docket. [ECF No. 25]. Subsequently, Mr. White filed objections to the
PF&R. [ECF No. 28]. Because Mr. White objected to the magistrate judge’s analysis
of all eleven grounds, this court has reviewed the analysis of each ground in
the PF&R, and agrees with the magistrate judge’s recommendation to dismiss Mr.
White’s Petition [ECF No. 2]. For one ground asserted by Mr. White—Ground Eleven,
for ineffective assistance of counsel—this court modifies the reasoning employed in
the PF&R but ultimately reaches the same conclusion that Mr. White cannot be
granted relief on that ground. Accordingly, the court ADOPTS Judge Aboulhosn’s
PF&R [ECF No. 25] as modified herein as to the analysis of Ground Eleven. The court
GRANTS the respondent’s Motion to Dismiss and for Summary Judgment [ECF No.
16], and ORDERS that Mr. White’s Petition for Writ of Habeas Corpus [ECF No. 2]
be DISMISSED and STRICKEN from the docket of this court.
I. Background
After review of those portions of Judge Aboulhosn’s report to which
objections were filed, the court ADOPTS the statement of facts and procedural history
set forth in the PF&R. The detailed account provided by the Magistrate Judge therein
requires only a brief summary here.
In 2008, Petitioner was tried before a jury in the Circuit Court of Jackson
County, West Virginia, and convicted of first degree murder and conspiracy to commit
murder. [ECF No. 16-17]. According to the evidence at trial, Mr. White and the
victim’s wife, Roseann Osborne, had a romantic relationship and shared a young
child, while Ms. Osborne remained married to the victim, Mohammed Mahrous. [ECF
No. 25, at 15–16 (quoting , 722 S.E.2d 566, 571–71 (W. Va. 2011))].
Sometime after 9:15 p.m. on September 17, 2007, Ms. Osborne and Mr. Mahrous met
at Riverfront Park in Ravenswood, West Virginia. at 16. While they were at the
2
park, Mr. White forcefully hit Mr. Mahrous’s head three times with a hammer
wrapped in a plastic bag, causing Mr. Mahrous’s death. The plastic bag, stained
with traces of Mr. Mahrous’s blood, was discovered on the river bank, and a
subsequent search of the river produced the hammer, with a piece of the plastic bag
stuck to it. Following the attack, Mr. White left the park. Ms. Osborne called 911 and
reported that her husband had been attacked by an unknown assailant who first
asked him for a cigarette. She gave a description of the assailant that did not match
Mr. White.
The vehicles driven by Ms. Osborne and Mr. Mahrous were both transported
to the city maintenance garage in Ravenswood, West Virginia. Pursuant to a
warrant, police searched the vehicle driven by Ms. Osborne, but owned by Mr.
Mahrous, and seized a cellular phone. A subsequent search of that phone led
investigators to Mr. White in the State of Indiana. Officers interviewed Mr. White for
six hours and he confessed to killing Mr. Mahrous by striking him in the head with a
hammer.
At trial, Mr. White did not dispute that he killed Mr. Mahrous, but instead
presented a diminished capacity defense, arguing that he lacked the ability to
premeditate and deliberate Mr. Mahrous’s murder. The jury found him guilty of
murder in the first degree with a recommendation of mercy, and also found him guilty
of conspiracy to commit a felony. [ECF No. 16-17]. The court denied Mr. White’s
motion for a new trial and sentenced him to life with mercy for first-degree murder,
3
and a term of not less than one year nor more than five years for the conspiracy
charge, with the sentences to run consecutively. [ECF No. 25, at 16].
On February 1, 2010, Mr. White, by counsel Matthew Clark, who also
represented him at trial, filed a Petition for Appeal with the Supreme Court of
Appeals of West Virginia. [ECF No. 25, at 3]. The court granted the Petition. After
briefing, the court rejected Petitioner’s assignments of error and affirmed his
conviction and sentence.
On March 3, 2011, Petitioner, acting , filed his Petition for Writ of Habeas
Corpus in the Circuit Court of Jackson County. The court appointed Shawn Bayless
as habeas counsel. Mr. Bayless filed an Amended Habeas Petition on behalf of
Petitioner, asserting fifteen grounds for relief. [ECF No. 16-20]. The circuit court
conducted an omnibus hearing on August 14, 2014, during which Petitioner and Mr.
Clark each testified. [ECF No. 16-27]. By order entered October 28, 2014, the
circuit court denied Mr. White’s habeas petition. [ECF No. 25, at 6]. The West
Virginia Supreme Court of Appeals affirmed that decision.
On August 16, 2016, Petitioner, acting , filed a second Petition for Writ
of Habeas Corpus in the Circuit Court of Jackson County. at 6. The court
appointed M. Tyler Mason as habeas counsel. at 6–7. Mr. Mason filed an Amended
Habeas Petition asserting four grounds for relief, all based on previous habeas
counsel’s failures to raise claims alleging ineffective assistance of trial counsel. at
4
7. The court dismissed the Petition, [ECF Nos. 16-29, 16-32], and the West
Virginia Supreme Court of Appeals affirmed, [ECF No. 25, at 8].
On September 17, 2021, Petitioner, acting , filed his Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody. [ECF No. 2].
Petitioner asserts eleven grounds for relief.1
II. Legal Standards
A. Federal Relief
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs all federal habeas corpus petitions filed after April 24, 1996.
, 521 U.S. 320 (1997). Under the AEDPA, a federal court may grant habeas
relief to state prisoners who are “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). If a petitioner’s claim “rests solely
upon an interpretation of state case law and statutes, it is not cognizable on federal
habeas review.” , 176 F.3d 249, 262 (4th Cir. 1999) (citing
, 502 U.S. 62, 67–68 (1991)).
When the federal issues raised in a § 2254 petition were raised and
“adjudicated on the merits in State court proceedings,” federal habeas relief is
available only if the state court adjudication
(1) 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
1 Mr. White’s Petition also includes arguments under the heading of “Ground Twelve,” but the
information therein appears to support Ground Eleven rather than assert any distinct claim. [ECF
No. 2, at 18–21].
5
(2) 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.
28 U.S.C. § 2254(d). Moreover, AEDPA requires a federal habeas court to presume
that a state court’s factual findings are correct. § 2254(e). A habeas petitioner
may overcome that presumption of correctness only by submitting clear and
convincing evidence.
State prisoners seeking relief under § 2254 must also overcome “several
procedural obstacles.” , 565 F.3d 140, 160 (4th Cir. 2009). These
incarcerated individuals must exhaust their available remedies in state court before
filing a § 2254 petition. 28 U.S.C. § 2254(b)(1)(A). The petitioner bears the burden
of proving that his claims were fairly presented in state court. ,
105 F.3d 907, 911 (4th Cir. 1997). To be fairly presented, “[t]he ground relied upon
must be presented face-up and squarely; the federal question must be plainly
defined.” , 27 F.3d 991, 995 (4th Cir. 1994) (internal quotation marks
omitted). If the claims were not fairly presented in state court, they are procedurally
defaulted and a federal habeas court is generally barred from adjudicating them.
A § 2254 petitioner can overcome a procedural default by showing cause for the
default and prejudice resulting from the error, or by establishing that his conviction
and sentence constitute “a miscarriage of justice.”
B. Magistrate Judge’s Recommendations
6
When a magistrate judge issues a recommendation on a dispositive matter, the
court reviews those portions of the magistrate judge’s report to which specific
objections are filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). When a party
fails to object to a portion of the magistrate judge’s report, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation. , 416 F.3d 310, 315
(4th Cir. 2005).
C. Motion to Dismiss
“In § 2254 proceedings, the familiar standards of Rule 12(b)(6) of the Federal
Rules of Civil Procedure apply to the government’s motion to dismiss. ,
589 F.3d 127, 139 (4th Cir. 2009) (citing , 399 F.3d 315, 319 n.1 (4th
Cir. 2005). “Thus, a motion to dismiss a § 2254 petition under Rule 12(b)(6) tests the
legal sufficiency of a petition, requiring the federal habeas court to ‘assume all facts
pleaded by the § 2254 petitioner to be true.’” (quoting , 565 F.3d at 169). “In
assessing whether the § 2254 petition states a claim for relief, the district court must
consider ‘the face of the petition and any attached exhibits.’” Because Respondent
filed a Limited Response [ECF No. 9], containing exhibits on which it now relies in
its Motion, Respondent “technically should have filed the motion under Rule 12(c) as
one for judgment on the pleadings.” , 589 F.3d at 139 (citing
, 178 F.3d 231, 243 (4th Cir. 1999)). The court construes Respondent’s
7
motion as a motion under Rule 12(c) which is assessed under the same standard that
applies to a Rule 12(b)(6) motion.
D. Motion for Summary Judgment
Respondent files the instant Motion as one “to Dismiss and for Summary
Judgment.” [ECF No. 16]. Rule 56 of the Federal Rules of Civil Procedure governs
motions for summary judgment and “applies to habeas proceedings.”
, 636 F.3d 124, 132 (4th Cir. 2011). To obtain summary judgment, the moving
party must show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
considering a motion for summary judgment, the court will not “weigh the evidence
and determine the truth of the matter.” , 477 U.S.
242, 249 (1986). Instead, the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving party.
, 475 U.S. 574, 587–88 (1986).
III. Discussion
Magistrate Judge Aboulhosn recommended that I dismiss all eleven grounds
for relief asserted in Mr. White’s Petition. [ECF No. 25]. Mr. White filed specific
objections to the PF&R on all grounds. [ECF No. 28]. Upon review, I have
determined that Petitioner’s objections lack merit, except for his objections to the
magistrate judge’s analysis of Ground Eleven. I will discuss this ground first, before
8
briefly explaining why Petitioner’s remaining grounds do not warrant federal habeas
relief.
A. Ground Eleven: Ineffective Assistance of Counsel
In Ground Eleven of his Petition, Mr. White argues that his prior habeas
counsel, Mr. Bayless, “failed to raise numerous assignments of error relating to the
ineffective assistance [that] Petitioner received from his trial counsel Matthew Clark
and Jeremy Vickers.” [ECF No. 2, at 12]. Mr. White alleges three distinct errors
committed by trial counsel: (1) failing to conduct proper on prospective juror
Cassia Scott, and failure to raise the proper grounds to strike her for cause; (2)
waiving Petitioner’s presentence investigation; and (3) failing to object to
inappropriate and irrelevant statements by the prosecutor. The magistrate judge
concluded that Petitioner could not assert an “independent cognizable claim” for
ineffective assistance of habeas counsel. [ECF No. 25, at 41].
Neither the magistrate judge nor Respondent addresses the underlying errors
alleged. Instead, their analyses rely on § 2254’s explicit provision that “[t]he
ineffectiveness or incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief.” 28 U.S.C. § 2254(i); [ECF
No. 17, at 23].
In the instant Motion, Respondent cites the Supreme Court’s decision in
, 566 U.S. 1 (2012), for the proposition that “ineffective assistance
of habeas counsel is only viable in the context of excusing a procedural default, and
9
cannot be relied upon in federal habeas corpus as a ‘ground for relief.’” [ECF No. 17,
at 23]. Although Respondent accurately characterizes , he did not recognize
the case’s implications for Petitioner. Typically, failure to raise a ground for relief in
state court means that ground is procedurally defaulted in federal habeas
proceedings, and “negligence on the part of a prisoner’s postconviction attorney does
not qualify as ‘cause.’” , 565 U.S. 266, 280 (2012). ,
however, recognizes a “narrow exception” whereby “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. In
reaching its holding, the Court emphasized the following “key difference between
initial-review collateral proceedings and other kinds of collateral proceedings”:
When an attorney errs in initial-review collateral proceedings, it is
likely that no state court at any level will hear the prisoner’s claim. This
Court on direct review of the state proceeding could not consider or
adjudicate the claim. And if counsel’s errors in an initial-review
collateral proceeding do not establish cause to excuse the procedural
default in a federal habeas proceeding, no court will review the
prisoner’s claims.
The same is not true when counsel errs in other kinds of postconviction
proceedings. While counsel’s errors in these proceedings preclude any
further review of the prisoner’s claim, the claim will have been
addressed by one court, whether it be the trial court, the appellate court
on direct review, or the trial court in an initial-review collateral
proceeding.
at 10–11 (internal citations omitted). The Court also observed that “[a] prisoner’s
inability to present a claim of trial error is of particular concern when the claim is
10
one of ineffective assistance of counsel,” in part because “[e]ffective trial counsel
preserves claims to be considered on appeal.” at 12.
Under Ground Eleven of his § 2254 Petition, Mr. White asserts three errors by
trial counsel which he argues provide grounds for relief.2 He further contends that
counsel failed to raise these grounds in his first state habeas proceeding—i.e., in an
initial-review collateral proceeding. In Petitioner’s second state habeas proceeding,
he raised these errors by trial counsel, but the court found Petitioner had waived the
grounds by failing to raise them in the initial habeas proceeding. Mr. White’s claims
therefore “fall squarely in the provisions of .” [ECF No. 28, at 2].
Respondent appears to emphasize the somewhat imprecise language in Mr.
White’s pleadings; Petitioner sometimes conflates a “ground for relief” with “cause”
for a procedural default when referring to his “claims of ineffective assistance of
habeas counsel.” [ECF No. 28, at 2]. But any ambiguities are superficial,
particularly given Petitioner’s status as a litigant. , 551
U.S. 89, 94 (2007) (“A document filed is ‘to be liberally construed.’” (quoting
, 429 U.S. at 106)). Mr. White plainly asserts grounds for relief based on trial
counsel’s ineffective assistance. , No. 19-1147, 2021 WL 2023585,
at *4 (W. Va. May 20, 2021) (“Although his petition is couched in terms of habeas
counsel, the arguments actually detail the alleged ineffectiveness of trial counsel.”).
2 The court construes “Ground Eleven” to contain three separate grounds for relief, based on errors
related to (a) prospective juror Cassia Scott, (b) Petitioner’s presentence investigation, and (c)
inadmissible prosecutorial statements. For clarity, the court will refer to these grounds as 11a, 11b,
and 11c, respectively.
11
Accordingly, in a federal habeas proceeding, Petitioner is permitted to
establish cause for defaulting on those grounds by showing that “appointed counsel
in the initial-review collateral proceeding, where the claim should have been raised,
was ineffective under the standards of , 466 U.S. 668 (1984).
To overcome the default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a “substantial one,” which is to say that
the prisoner must demonstrate that the claim has some merit.” , 566 U.S. at
14 (citing , 537 US. 322 (2003)). If Petitioner can show cause to
excuse the default, the federal court may consider his claims on their merits.
Because the magistrate judge found that Ground Eleven did not present a
cognizable claim, he rejected the ground without determining whether there was
cause for the default. It is apparent from the record, however, that Petitioner cannot
establish cause to excuse default for any of the three errors asserted. Accordingly,
although I modify the reasoning employed in the PF&R, I reach the same result for
all three claims, each of which I will now discuss.
i. Ground 11a: Prospective Juror Cassia Scott
Petitioner argues that “trial counsel Matthew Clark and Jeremy Vickers . . .
failed to conduct proper voir dire on Juror Cassia Scott, and then failed to raise proper
grounds on the record to strike Ms. Scott for cause.” [ECF No. 2, at 12]. Petitioner has
expressed multiple concerns about Ms. Scott as a potential juror: “she was a Jackson
County Courthouse employee and ha[d] knowledge of Petitioner’s case”; she “had a
12
negative response to the fact that the case would show an extramarital relationship
was engaged in by the Petitioner”; and she “answered ambiguously when informed
psychological testimony would be part of Petitioner’s defense.” [ECF No. 25, at 41–
42]. Trial counsel did move to strike Ms. Scott for cause, but only on the basis of her
response regarding psychological testimony. The trial court denied counsel’s motion
to strike for cause, which “forced” Petitioner to “waste” a peremptory challenge to
remove Ms. Scott from the jury. [ECF No. 2, at 13]. On appeal, counsel raised the
issues that Ms. Scott should have been stricken for cause because of her prior
knowledge of the case and because of her “equivocal” response to Petitioner’s
extramarital affair.3 But the Supreme Court of Appeals of West Virginia refused to
consider the assignments of error because they were not raised at trial.
, 722 S.E.2d at 574 n.5. When counsel failed to raise this error in Mr. White’s
first habeas proceeding, it was deemed waived in his second habeas proceeding.
, 2021 WL 2023585, at *3.
To establish cause for procedural default, Petitioner must show that habeas
counsel’s failure to raise the ground demonstrated ineffectiveness under the
standard, and that the underlying claim for ineffective assistance of trial
counsel has merit under the same standard. Under , Petitioner must show
3 Appellate counsel also raised the trial court’s failure to strike Ms. Scott for cause based on her
responses about psychological testimony. The Supreme Court of Appeals denied relief on this ground,
“agree[ing] with the trial court’s conclusion [that] Ms. Scott was clear in stating that she would
consider the psychological evidence. She merely qualified this answer by pointing out that she had not
yet heard the psychological evidence that would be presented in this case, and, therefore, could not
express an opinion as to how she would perceive that evidence. We find no indication of bias or
prejudice.” , 722 S.E.2d at 575.
13
(1) that counsel’s performance was deficient, i.e., “that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” and (2) “that counsel’s deficient performance prejudiced the
defense,” i.e., “that counsel’s errors were so serious as to deprive the defendant of a
fair trial.” 466 U.S. at 687. The court may address the two prongs in either order. “In
particular, a court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” at 697. “An error by counsel, even if professionally reasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” at 691. Because Petitioner’s claim of ineffective assistance
is grounded in the claim that counsel failed to strike a biased juror, he “must show
that the juror was actually biased against him.” , 258 F.3d
453, 458 (6th Cir. 2001) (quoting , 59 F.3d 73, 75 (8th Cir. 1995)).
“Judicial scrutiny of counsel’s performance must be highly deferential . . . the
defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” , 466 U.S. at
689 (quoting , 350 U.S. 91, 101 (1955)). “Counsel is also accorded
particular deference when conducting . A strategic decision cannot be the
basis for a claim of ineffective assistance unless counsel’s decision is shown to be so
ill-chosen that it permeates the entire trial with obvious unfairness.” , 258
F.3d at 457 (citing , 131 F.3d 1340, 1349 (10th Cir. 1997)).
14
As to the prejudice prong of the standard, Petitioner “must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” at 694;
, 421 U.S. 794, 800–03 (1975) (holding defendant failed
to raise an inference of prejudice where jurors “had some knowledge of petitioner’s
past crimes” and “one juror conceded that his prior impression of petitioner would
dispose him to convict”).
In this case, Petitioner cannot establish cause for default on this claim. Even
if he could show that habeas and trial counsel performed deficiently, he cannot show
any likelihood of prejudice. Although Petitioner needed to use a peremptory
challenge, Ms. Scott was stricken from the jury and did not take part in deciding Mr.
White’s case. While “counsel’s ‘failure to attempt to bar the seating of obviously biased
jurors constitute[s] ineffective assistance of counsel of a fundamental degree,’”
, 258 F.3d at 463 (quoting , 961 F.2d 748, 756 (8th Cir.
1992)), this is not what occurred here, even if Ms. Scott was actually biased. Mr.
White cannot show a reasonable probability that, had counsel moved to strike Ms.
Scott on the “proper” grounds, and had the trial court agreed, Petitioner would have
been able to use that additional peremptory strike to select a jury that would have
arrived at a different result. Although not directly on point, it is well established that
a defendant’s right to an impartial jury is not violated where a defendant uses a
15
peremptory challenge to remove a potential juror due to the trial court’s failure to
remove that juror for cause. , 528 U.S. 304
(2000); , 258 F.3d at 464 (defending reliance on to
analyze ineffective assistance of counsel on the basis that “[t]hese Sixth Amendment
requirements apply regardless of whether blame for a biased jury is assigned to
counsel or the court, who ultimately share the responsibility of removing
biased venirepersons”). Moreover, even if Ms. Scott’s responses raise a specter of bias,
review of the transcript from does not leave the court “with a clear and
definite impression that [she] would be unable faithfully and impartially to apply the
law.” , 722 S.E.2d at 575. In responding to certain jurors about their
exposure to the case, the court explained that “in a small community . . . it is not
unusual that people have heard about these cases before they come in for jury duty,
and the fact you have heard about it doesn’t disqualify you from jury service
necessarily.” [ECF No. 16-12, at 43:13–18]. When trial counsel followed up specifically
with Ms. Scott, she denied ever actually participating in the filing of documents in
this case, noting that “everything is sealed,” and she did not recall any particulars of
the case ever being discussed in her presence. at 233:11–235:10.
In light of the foregoing, any failure by counsel is not “so ill-chosen that it
permeates the entire trial with obvious unfairness.” , 258 F.3d at 457. My
conclusion is bolstered by Supreme Court precedent establishing the substantial
showing required to demonstrate actual bias and to overcome the “‘strong
16
presumption’ that counsel’s conduct falls within the wide range of reasonable
professional assistance.” , 466 U.S. at 689; , , 467
U.S. 1025 (1984) (finding no “manifest error” in trial court’s findings of impartiality
even where “8 of the 14 jurors and alternates actually seated admitted that at some
time [before trial] they had formed an opinion as to [defendant’s] guilt”); , 421
U.S. at 800 (“[T]he mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is [not] sufficient to rebut the presumption of
a prospective juror’s impartiality.”). Accordingly, while I do not adopt the magistrate
judge’s reasoning that a petitioner can never assert ineffective assistance of habeas
counsel when seeking relief in federal court, I agree with his recommendation to grant
Respondent’s Motion as to Ground 11a.
ii. Ground 11b: Waived Presentence Investigation
Mr. White next argues that “[t]rial counsel’s decision to waive presentence
investigation was deficient under an objective standard of reasonableness; and there
is a reasonable probability that, but for counsel’s professional errors, the result of the
underlying criminal proceedings would have been different.” [ECF No. 2, at 14].
Specifically, Mr. White asserts that his lack of “significant criminal history” or
“substance abuse issues,” as well as his “good employment history” were never
presented to the sentencing court. He also states that “trial counsel did not counsel
him about the benefits of a presentence report.” [ECF No. 24, at 11].
17
Petitioner acknowledges that on both counts of conviction, his sentences reflect
the precise terms of imprisonment established by law. ; [ECF No. 9-3 (showing
Mr. White’s sentences of life with mercy for first-degree murder and one to five years
for conspiracy to commit a felony)]; W. Va. Code § 61-2-2 (“Murder of the first degree
shall be punished by confinement in the penitentiary for life.”), § 61-10-31 (providing
the offense of conspiring to commit a felony “shall be punished by imprisonment in
the penitentiary for not less than one nor more than five years”). Accordingly, Mr.
White’s challenge focuses on the sentencing court’s discretionary decision to impose
consecutive rather than concurrent sentences. [ECF No. 2, at 14 (“Had the
Petitioner been granted the opportunity to undergo a presentence investigation, there
is a reasonable probability that he would have received concurrent sentences.”)];
W. Va. Code § 61-11-21 (“When any person is convicted of two or more offenses,
before sentence is pronounced for either, the confinement to which he may be
sentenced upon the second, or any subsequent conviction, shall commence at the
termination of the previous term or terms of confinement, unless, in the discretion of
the trial court, the second or any subsequent conviction is ordered by the court to run
concurrently with the first term of imprisonment imposed.”).
From the extensive record before the court, it is apparent that Mr. White
cannot show a reasonable probability that a presentence investigation would have led
him to receive concurrent rather than consecutive sentences. Although absent from
that record is a transcript from Petitioner’s sentencing hearing, the trial transcripts
18
and other presentence documents, I can determine that the sentencing court had
most of the relevant information before it. [ECF No. 9-3 (sentencing order)]. The
trial court was aware of Mr. White’s “sporadic” employment history, and multiple
witnesses testified about his mental condition. [ECF No. 16-15];
, 563 U.S. 170, 200 (2011) (finding “no reasonable probability” of a different
verdict based on “‘new’ evidence [which] largely duplicated the mitigation evidence at
trial”). In the first state habeas proceeding, trial counsel testified to his concerns that
allowing Mr. White to give a “personal recounting of his involvement in the crime”
and “fully explain his motives for participating in these acts to the court,” [ECF No.
2, at 14], could have undermined mitigating factors related to Mr. White’s mental
state. [ECF No. 16-27]; , 563 U.S. at 202 (“[S]ome of the new testimony
would likely have undercut the mitigating value of the testimony by [defendant]’s
mother.”).
Moreover, the court was well aware of the facts of this case, in which Mr. White
conspired with Ms. Osborne to murder Mr. Mahrous, and did so by bludgeoning him
with a hammer. By all accounts, Mr. White was expected to receive a sentence of life
. [ECF No. 16-27, at 30 (“[T]his is a hard case, probably a no-mercy
case.”)]. Accordingly, “[t]hat the Petitioner received mercy from the Jury in this case
is evidence that trial counsel’s strategy was not only an objectively reasonable
strategy, but was a successful strategy.” , 2015 WL 7628834, at *8.
As such, Petitioner does not establish either the unreasonableness of counsel’s
19
performance nor any reasonable probability of a different result had the sentencing
court had access to his employment history and limited criminal history.
Because I agree with the magistrate judge’s recommendation to grant
Respondent’s Motion on Ground 11b, I adopt the PF&R with the above-discussed
modification to the reasoning applied to Ground Eleven.
iii. Ground 11c: Prosecutorial Statements
Mr. White argues that “[t]rial counsel failed to object to the prosecutor’s unfair
statements at trial that constituted prosecutorial misconduct.” [ECF No. 28, at 2].
Mr. White specifically takes issue with two statements made during closing
argument. First, the prosecutor stated, “[t]he second time he decided to raise his
hammer and hit them and give them a blow that was fatal, that’s premeditation. The
State’s proved it right there. It only takes a second to form premeditation.” [ECF No.
16-16, at 50:19–23]. Petitioner argues “[t]his is a gross misstatement of the law.”
[ECF No. 2, at 15]. Mr. White also challenges the prosecutor’s subsequent statement
that “[Petitioner] didn’t think about those children he claims to love so much.” [ECF
No. 16-16, at 50:24–51:1]. Petitioner contends this statement is irrelevant or, if
relevant, then overly prejudicial and therefore inadmissible.4 [ECF No. 2, at 16–17].
In sum, Mr. White seeks relief on the ground that trial counsel failed to object to both
4 The admissibility of evidence in state court proceedings raises issues of state law, which are not
cognizable in federal habeas proceedings. Accordingly, this court’s analysis focuses on whether
counsel’s failure to object to these statements or raise them in state habeas proceedings violates
Petitioner’s federal right to counsel under the Sixth Amendment.
20
a “blatant misrepresentation of an essential element of the crime” and a “highly
prejudicial comment.”
Unlike the other trial errors raised under Ground Eleven, this claim was
previously presented in Mr. White’s postconviction proceedings. In his first habeas
petition, counsel asserted “inappropriate statements of the prosecutor” as a ground
for relief. [ECF No. 25, at 5]. But counsel effectively abandoned the claim when he
“failed to further elucidate the issue in the Petition or at the omnibus hearing.” [ECF
No. 2, at 15]. Nevertheless, because the issue was at least raised, it was not deemed
waived in Mr. White’s second habeas proceeding. After ordering additional briefing
on the issue, the state habeas court assessed the prosecutorial statement regarding
premeditation and concluded that “Mr. Bayliss’s failure to put on evidence in support
of this claim” did not amount to ineffective assistance of counsel under either prong
of the inquiry. [ECF No. 16-32]. The Supreme Court of Appeals of West
Virginia affirmed that ruling. , 2021 WL 2023585, at *4–5. Because
this claim “was adjudicated on the merits in State court proceedings,” I review the
state court decision under the deferential standard set out by the AEDPA. 28 U.S.C.
§ 2254(d).
Under West Virginia law, “[f]our factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to require reversal: (1)
the degree to which the prosecutor’s remarks have a tendency to mislead the jury and
to prejudice the accused; (2) whether the remarks were isolated or extensive; (3)
21
absent the remarks, the strength of competent proof introduced to establish the guilt
of the accused; and (4) whether the comments were deliberately placed before the jury
to divert attention to extraneous matters.” Syl. pt. 6, , 456 S.E.2d 469,
474 (W. Va. 1995). The circuit court found that the challenged statement “fails to
satisfy” any of the four factors. [ECF No. 16-32, at 9]. In affirming the circuit court’s
decision, the Supreme Court of Appeals went even further, concluding that “the
statement was a correct statement of the law.” , 2021 WL 2023585, at
*5; [ECF No. 16-32, at 8 (“This Court stops short of finding the Statement did not
misconstrue the law.”)]. “Even if the prosecutor’s remarks were improper,” the court
found no clear prejudice given that “the prosecutor’s statement was isolated and was
confined to rebuttal,” “the strength of the evidence was so strong that petitioner’s
guilt was evident absent the remarks,” and “there is no evidence that the prosecutor
deliberately placed the statement before the jury to divert attention to extraneous
matters.” , 2021 WL 2023585, at *5. Both courts noted the trial court’s
correct instructions to the jury regarding premeditation. at *4; [ECF No. 16-32, at
8]. Having found no clear prejudice, the courts rejected Petitioner’s claim that failure
to raise these objections amounted to ineffective assistance of counsel.
“[I]t is not the province of a federal habeas corpus court to reexamine state-
court determinations on state-law questions. In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” , 502 U.S. at 67–68. Given the Supreme Court
22
of Appeals’ determination that the prosecutor’s statement did not misrepresent West
Virginia law, I need not even apply AEDPA deference to conclude that failure to raise
this issue cannot support a claim for ineffective assistance of counsel. Accordingly,
while I do not adopt the magistrate judge’s reasoning of Ground Eleven, I reach the
same conclusion that Ground 11c does not warrant habeas relief.
B. Non-Cognizable Claims: Grounds Two, Three, and Six
Petitioner specifically objects to the magistrate judge’s analysis of Grounds
Two, Three, and Six, each of which the judge found did not present cognizable claims
for relief in federal habeas review. [ECF No. 28, at 4–6; ECF No. 25, at 22–36]. I
agree with the magistrate judge’s findings and recommendations regarding Grounds
Two, Three, and Six of Mr. White’s Petition, and I reject Mr. White’s objections to
these portions of the PF&R.
i. Ground Two: Violation of Due Process by Admission of
Unlawfully Obtained Evidence
In Ground Two, Petitioner argues that the trial court violated his due process
rights under the Fourteenth Amendment by admitting evidence derived from a
warrantless search of a cellular phone. [ECF No. 2, at 7–8]. The magistrate judge
reviewed the procedural history of this issue and found the claim procedurally
defaulted. I agree, and I reject Mr. White’s objection that Judge Aboulhosn did not
properly consider an intervening change in the law.
23
Investigating officers found the phone in the vehicle owned by the victim and
driven by Ms. Osborne. The warrantless search of the phone’s contents led police to
the petitioner, as well as other inculpatory evidence. The trial court denied
Petitioner’s motion to suppress the evidence under the Fourth Amendment. On direct
appeal, the West Virginia Supreme Court of Appeals “expressly h[e]ld that, when
searching a vehicle pursuant to a valid search warrant, no additional search warrant
is required to examine the contents of items that are properly seized in the execution
of the warrant, including, but not limited to, cellular telephones.” Syl. pt. 14,
, 722 S.E.2d at 571. Accordingly, the issue was deemed res judicataon collateral
review. , No. 14-1272, 2015 WL 7628834, at *22 (W. Va. Nov. 23,
2015).
At trial and throughout postconviction proceedings, Petitioner’s arguments
regarding the cell phone invoked the Fourth Amendment. Newly framed as a due
process violation under the Fourteenth Amendment, the claim is procedurally
defaulted, as the magistrate judge correctly determined. Because “Petitioner never
presented to the [Supreme Court of Appeals of West Virginia] his claim that the
search of his cell phone violated his due process rights under the Fourteenth
Amendment,” Ground Two “is unexhausted and there is no allegation or indication
that Petitioner should be excused from the exhaustion requirement.” [ECF No. 25, at
28].
24
“Nevertheless, a claim that has not been presented to the state’s highest court
‘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.’”
(quoting , 220 F.3d 276, 288 (4th Cir. 2000)). “However, the
procedural bar that gives rise to exhaustion 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.” , 220 F.3d at 288 (quoting , 518
U.S. 152, 162 (1996)). As Judge Aboulhosn found, Petitioner has not shown cause and
his claim is procedurally defaulted. [ECF No. 25, at 30–31].
The magistrate judge also considered whether Petitioner’s claim is cognizable
if construed as having been brought under the Fourth Amendment. at 31. The
judge, correctly, found federal habeas relief unavailable because “the State has
provided an opportunity for full and fair litigation of [Petitioner’s] Fourth
Amendment Claim.” at 31 (citing , 428 U.S. 465, 494 (1976)
(holding that in the context of federal habeas review, “the contribution of the
exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal,
and the substantial societal costs of application of the rule persist with special force”);
and then citing , 696 F.2d 303, 304 (4th Cir. 1982) (recognizing
that “marked, for most practical purposes, the end of federal court
25
reconsideration of Fourth Amendment claims by way of habeas corpus petitions
where the petitioner had an opportunity to litigate those claims in state court”)).
Petitioner objects to the magistrate judge’s analysis on the basis that “the
claim was not fairly and fully adjudicated” because the West Virginia high court,
when reviewing its 2011 appellate decision on collateral review in 2015, failed to
consider an intervening United States Supreme Court ruling. In 2014, the Court
decided , holding that the police generally may not, without a
warrant, search digital information on a cell phone seized from an individual who has
been arrested. 573 U.S. 373 (2014). But Judge Aboulhosn addressed this argument
in the PF&R after Petitioner raised it in opposition to Respondent’s Motion. Finding
this case governed by , the judge found, and I agree, that the change in
the law does not change that Petitioner was afforded a full and fair opportunity to
litigate his Fourth Amendment claim. 892 F.2d 1193, 1200 (1989) (holding petitioner
“was afforded every full and fair opportunity to litigate and have adjudicated the
Fourth Amendment claim with respect to the search of his vehicle,” despite the
Supreme Court decision following his trial that established an additional
requirement for inventory searches) (citing , 479 U.S. 367 (1987)));
, 428 U.S. at 489–94 (discussing the societal costs of applying the
exclusionary rule at every stage but especially on federal habeas review). Finding
Petitioner’s objection to be without merit, I adopt Judge Aboulhosn’s findings and
recommendation to grant judgment to Respondent on Ground Two.
26
ii. Ground Three: Violation of Due Process by Admission of Co-
Conspirator Statements
In Ground Three, Mr. White asserts a due process violation under the
Fourteenth Amendment arising out of the trial court’s admission of statements made
by his co-defendant, Ms. Osborne. [ECF No. 2, at 8]. Mr. White argues these
statements were inadmissible hearsay because the evidence did “not establish the
proper foundation of a common plan, conspiracy, or joint enterprise” necessary to
introduce Ms. Osborne’s statements under West Virginia Rule of Evidence
801(d)(2)(e). After reviewing the procedural history of the issue, the magistrate judge
found procedural default. [ECF No. 25, at 35]. I agree, and I reject Mr. White’s
objection that this ground presents a federal issue cognizable on habeas review in
this court.
Judge Aboulhosn found that as with Ground Two, this issue was previously
litigated under the Fourth Amendment and therefore procedurally defaulted for
multiple reasons. Petitioner never presented his Fourteenth Amendment claim to the
West Virginia Supreme Court of Appeals and therefore has failed to exhaust his
remedies. And even if the claim were treated as exhausted, Petitioner has not
established cause for the default.
As the magistrate judge notes, Petitioner’s claim is rooted in the West Virginia
Rules of Evidence, but he cites , 483 U.S. 171 (1987), “in an
attempt to construe his claim as a violation of federal law.” [ECF No. 25, at 35].
27
Although Mr. White correctly notes that “[t]here are various ways in which the
validity of [state law] may be drawn in question on the ground that it is repugnant to
the Constitution of the United States,” , 394 U.S. 576, 584 (1969),
I agree with the magistrate judge that Petitioner “cit[ing] in his petition for
direct appeal,” [ECF No. 28, at 5], “is insufficient, [ECF No. 25, at 35]. “Petitioner
cited for its holding that ‘Fed.R.Evid. 801(d)(2)(E) requires proof of the
conspiracy by a preponderance of the evidence and allows consideration of the offered
declaration as part of the proof of the conspiracy.’” at 35–36. But nothing in the
record reflects “that Petitioner alleged the admission of the co-conspirator’s
statement violated . . . federal law.” at 36. Petitioner focused solely upon the
misapplication of a state evidentiary rule, and “[t]he fact that the admitted evidence
allegedly was improper under State law, however, does not provide a basis for
relief.” (citing , 459 U.S. 422, 438 n.6 (1983)) (“[T]he Due
Process Clause does not permit the federal courts to engage in a finely-tuned review
of the wisdom of state evidentiary rules.”). Mr. White’s objection on this ground
simply renews this argument which the magistrate judge already carefully rejected.
Accordingly, I adopt Judge Aboulhosn’s findings and recommendation to grant
Respondent’s Motion as to Ground Three.
iii. Ground Six: Violation of Due Process by Cumulative Error
In Ground Six, Mr. White argues that “[m]any pre-trial, trial, and post-trial
constitutional errors were committed by the trial court in its rulings . . . . Although
28
the errors by themselves may not rise to constitutional deficiencies together, when
combined they do reach constitutional violations and the trial court should have
granted the Petitioner a new trial after he filed a motion for such.” [ECF No. 2, at 9].
In the PF&R, Judge Aboulhosn reviewed the doctrine of cumulative error and found
that Petitioner failed to demonstrate individual errors capable of cumulation. [ECF
No. 25, at 38]. I agree.
The Fourth Circuit has described the cumulative error doctrine as follows:
The cumulative effect of two or more individually harmless errors has
the potential to prejudice a defendant to the same extent as a single
reversible error. Generally, however, if a court determines that none of
a defendant’s claims warrant reversal individually, it will decline to
employ the usual remedy of reversing for cumulative error. To satisfy
this requirement, such errors must so fatally infect the trial that they
violated the trial’s fundamental fairness When none of the individual
rulings work any cognizable harm, it necessarily follows that cumulative
error doctrine finds no foothold.
, 561 F.3d 302, 330 (4th Cir. 2009) (internal citations and
markings omitted).
“In support of his cumulative error claim, Petitioner alleges that the trial court
improperly admitted cellphone evidence, his confession, and hearsay statements.”
[ECF No. 25, at 38]. But as Judge Aboulhosn found, for reasons explained, ,
Petitioner fails to establish that any of the admissions constitute error individually.
Accordingly, I agree with the magistrate judge’s conclusion that “there is no error to
cumulate in this case,” , and I reject Petitioner’s objection renewing his position,
[ECF No. 28, at 7].
29
C. AEDPA Deference: Grounds One, Four, Five, Seven, Eight, Nine, and
Ten
The remaining grounds to which Petitioner specifically objected are reviewed
under the deferential AEDPA standard because they were “adjudicated on the merits
in State court proceedings.” 28 U.S.C. § 2254(d). As stated above, this court may not
grant relief unless the state court adjudication 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 “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” § 2254(d)(1)–(2). As to each of these claims, the magistrate
applied the AEDPA standard and found no error in the state court proceedings for
which federal habeas relief may be granted. I agree with the magistrate judge’s
determinations, for reasons I will now discuss.
i. Ground One: Violation of Right to an Impartial Jury
In Ground One, Mr. White argues that the trial court “failed to disqualify two
prospective jurors, Michelle Lemon and Cassia Scott.” [ECF No. 2, at 7]. In his PF&R,
Judge Aboulhosn reviewed the state court decisions upholding the trial court’s rulings
and found no violation of federal law. [ECF No. 48–50]. I agree.
Mr. White expresses concern about Ms. Lemon’s personal relationship with the
lead detective in Petitioner’s case. As to Ms. Scott, Mr. White expresses several
concerns, which are addressed in the above discussion of Ground Eleven. Of his three
30
distinct concerns, only one has not yet been fully resolved: that Ms. Scott “answered
ambiguously when informed psychological testimony would be part of the Petitioner’s
defense.”
In Mr. White’s final state court proceedings, the West Virginia Supreme Court
of Appeals found “no indication that either prospective juror Lemon or prospective
juror Scott would have been ‘unable faithfully and impartially to apply the law’” and
therefore “conclude[d] that the trial court did not abuse its discretion in refusing to
disqualify them.” , 722 S.E.2d at 575. In arriving at that determination,
the court noted that “the circuit court concluded that Ms. Lemon’s only connection
was with the detective’s mother,” and that “Ms. Scott was clear in stating that she
would consider the psychological evidence.” at 574–75.
After surveying the relevant case law, Magistrate Judge Aboulhosn found
Petitioner’s claim to lack merit “because there is no evidence that the [Supreme Court
of Appeals of West Virginia]’s determination was contrary to, or an unreasonable
application of, clearly established federal law; or based on an unreasonable
determination of the facts.” [ECF No. 25, at 48]. Notably, neither prospective juror
was ultimately seated despite the trial court’s denial of counsel’s motions to strike for
cause. Judge Aboulhosn noted the “well established” principle that “a defendant’s
right to an impartial jury is not violated where a defendant uses a peremptory
challenge to remove a potential juror due to the trial court’s failure to remove that
juror for cause.” at 49 (first citing , 538 U.S. at 304; and then
31
citing , 487 U.S. 81 (1988)). Moreover, “[b]ecause peremptory
challenges are a creature of statute and are not required by the Constitution, it is for
the State to determine the number of peremptory challenges allowed and to define
their purpose and the manner of their exercise.” , 487 U.S. at 89. Accordingly,
“[t]o the extent Petitioner argues he had a right to peremptory strikes under State
law, such a claim is not cognizable in federal corpus.” [ECF No. 25, at 50
(citing , 502 U.S. at 67–68) (“[I]t is not the province of a federal habeas corpus
court to reexamine state court determinations on state-law questions.”)].
In objecting to Judge Aboulhosn’s analysis of Ground One, Mr. White asserts
arguments based only on state law, not his Sixth Amendment right to an impartial
jury. Finding that objection lacks merit, I adopt the magistrate judge’s findings and
recommendation to grant Respondent’s Motion as to Ground One.
ii. Violations: Grounds Four and Nine
In Grounds Four and Nine of his Petition, Mr. White argues that his
Fourteenth Amendment rights to due process were violated when the State withheld
allegedly exculpatory or impeachment materials, in contravention of
, 373 U.S. 83 (1963). [ECF No. 2, at 8, 10]. Petitioner alleges the State
withheld “certain court records from North Carolina that showed the alleged victim
in the case to have been the subject of domestic violence petitions in that state,” as
well as “a video taken from a surveillance camera close to where the alleged crime
took place that contradicted the timeline asserted by the state.” at 8. The state
32
courts denied relief. The magistrate judge reviewed the state court determinations
under the AEDPA standard and found no grounds for federal habeas relief. [ECF No.
25, at 57–59]. I agree.
The state courts found that the victim’s domestic violence records were not
material or suppressed, noting that “the State was not in possession of the records in
question until the Petitioner’s trial,” and that “Mr. Clark and the Petitioner
have admitted that they were aware of the documents.” , 2015 WL
7628834, at *14. The courts similarly found the video was not suppressed given that
it “was revealed in the State’s discovery packet.” , 722 S.E.2d at 583.
Moreover, the video was immaterial because Petitioner confessed to the killing and
never disputed his presence at Riverfront Park at that time, relying instead on a
defense of diminished capacity.
Based on the foregoing, the magistrate judge found the state court decision
“was not contrary to, or an unreasonable application of, clearly established federal
law; or based on an unreasonable determination of the facts.” [ECF No. 25, at 57]. I
agree, and I reject Petitioner’s objection renewing his arguments. I adopt Judge
Aboulhosn’s findings and recommendation as to Grounds Four and Nine.
iii. Ground Five: Insufficiency of Evidence to Convict
In Ground Five, Petitioner argues that his due process rights under the
Fourteenth Amendment were violated because there was insufficient evidence to
sustain his convictions. [ECF No. 2, at 8–9]. In postconviction proceedings, the state
33
courts affirmed his conviction. Under the AEDPA standard, the magistrate judge
found no error in the state courts’ determination that sufficient evidence supported
the jury’s findings of guilt. [ECF No. 25, at 65–68]. I agree.
Mr. White contends that “no direct evidence was ever submitted (none existed)
at trial showing some plot between Petitioner and the co-defendant [Ms. Osborne] to
conspire to kill the alleged victim,” and that the jury’s improper findings of
premeditation and deliberation—essential elements of his conviction for first-degree
murder—“considered inference upon inference rather than an inference based upon
the actual scant circumstantial evidence submitted at trial.” at 9.
With respect to evidence of Petitioner’s conspiracy with Ms. Osborne, the state
courts found “there was sufficient circumstantial evidence in this case from which the
jury could infer that an agreement to kill Mr. Mahrous existed between Mr. White
and Ms. Osborne.” , 772 S.E.2d at 578. This evidence included:
testimony from Ms. Osborne’s friend that the co-defendants “had, in her presence,
frequently discussed killing Mr. Mahrous”; “numerous telephone calls between Mr.
White and Ms. Osborne on the day of Mr. Mahrous’s murder, including several that
occurred in the hour leading up to and immediately following the murder”; Mr.
White’s admission to police officers “that Ms. Osborne told him she and her husband
were going to Riverfront Park”; and “Ms. Osborne’s attempts to conceal the identity
of the killer following the murder.”
34
The state courts similarly found sufficient evidence from which the jury could
find premeditation and deliberation. In doing so, the courts explained that “[t]he
evidence pertaining to Mr. White’s diminished capacity was controverted,” and
highlighted Mr. White’s admissions “that, on the night he killed Mr. Mahrous, he
followed Ms. Osborne and Mr. Mahrous to Riverfront Park, and that he approached
Mr. Mahrous while carrying a hammer in a white plastic bag.” at 577.
The magistrate judge found that neither state court finding warrants federal
habeas relief under the AEDPA standard. I agree and adopt his recommendation to
grant Respondent’s Motion as to Ground Five.
iv. Ineffective Assistance of Counsel: Grounds Seven and Ten
Unlike those asserted under Ground Eleven, the errors by trial counsel alleged
in Grounds Seven and Ten were previously adjudicated in state court proceedings
and are therefore reviewed under AEDPA deference. “Petitioner alleged that his trial
attorneys (a) failed to adduce evidence that the victim was known to be a man of
violence, (b) did not adequately investigate the case because had they done so they
would have found domestic violence records from North Carolina that showed the
victim in this case had been the subject of several domestic violence petitions (c) did
not call Victim’s Advocate Melissa Wilkinson to testify regarding a domestic violence
petition against the victim[,] (d) did not reveal that the victim had a shoplifting
charge, a drug charge, and immigration issues, (e)that the attorneys failed to hire an
investigator as promised, and (f) that his trial counsel failed to obtain, investigate,
35
review, and challenge the composition of the grant jury.” [ECF No. 28, at 9]. The state
courts found that trial counsel’s assistance was not ineffective under the
standard and the equivalent West Virginia authority. Judge Aboulhosn reviewed the
state court determination and correctly found no grounds for federal habeas relief.
In Mr. White’s first habeas proceeding, the court held an omnibus hearing at
which trial counsel, Mr. Clark, testified about his contested decisions. Mr. Clark
explained that an investigator “was not warranted” given Mr. White’s confession, the
“thorough” investigation by the Sheriff’s Department, and the lack of facts in dispute.
[ECF No. 16-27]. On habeas review, the circuit court found that “[d]espite not hiring
a private investigator, trial counsel fully investigate.” [ECF No. 9-15]. Counsel
also testified he chose not to pursue arguments related to the victim’s past because
he thought it would undermine the petitioner’s defense of diminished capacity. [ECF
No. 16-27 (“My concern was presenting that evidence would have gave motive to the
defendant, perhaps greater than he already had, and would lend more credence to
the State’s theory.”)]. The habeas court found that “[t]rial counsel wisely believed that
it would be a better strategy to convince the jury that the Petitioner was a mentally
ill man, than to try to convince the jury that the victim deserved to be brutally
bludgeoned to death.” [ECF No. 9-15]. Accordingly, I reject Petitioner’s objection that
but for counsel’s failure to introduce evidence of the victim’s history of domestic
violence, there is a reasonable probability that the result of the proceedings would
have been different. I agree with the magistrate judge’s finding that Petitioner’s
36
results in state court were “not contrary to, or an unreasonable application of, clearly
established federal law; or based on an unreasonable determination of the facts.”
[ECF No. 25, at 77]. Respondent is entitled to judgment on Grounds Seven and Ten.
v. Ground Eight: Confession
In Ground Eight, Petitioner asserts a Fourteenth Amendment due process
violation in the trial court’s admission of his confession, which he argues was coerced.
[ECF No. 2, at 10]. Petitioner emphasizes that his confession “was the result of a six
hour interrogation in which the Petitioner felt very intimidated and was not free to
leave.” In the PF&R, Judge Aboulhosn applied the AEDPA standard to the state
courts’ determination that the confession was not coerced, and he found no error for
which federal habeas relief may be granted. I agree.
On habeas review, the circuit court determined the confession was not coerced
after making the following findings: (1) officers showed Petitioner respect and
sympathy throughout the course of the interrogation; (2) officers never threatened
Petitioner physically or verbally; and (3) although the interview took place late at
night and into the early morning hours, the interrogation was conducted at a time
when Petitioner was typically awake because we worked night shifts. [ECF No. 9-15].
The Supreme Court of Appeals adopted and incorporated the circuit court’s “well-
reasoned findings and conclusions.” , 2015 WL 7628834, at *11–13.
The magistrate judge found, and I agree, this court cannot disturb the state court
decision under the AEDPA standard. [ECF No. 25, at 87—89].
37
IV. Conclusion
The court adopts the magistrate judge’s PF&R [ECF No. 25], as modified with
respect to the analysis of Ground Eleven of Mr. White’s Petition [ECF No. 2], and
GRANTS the respondent’s Motion to Dismiss and for Summary Judgment [ECF No.
16]. The court ORDERS that Mr. White’s Petition is DISMISSED and this matter is
STRICKEN from the docket of this court.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: March 31, 2023
pe STATES DISTRICT JUDGE
38 Case Information
- Court
- S.D.W. Va
- Decision Date
- March 31, 2023
- Status
- Precedential