Mahood v. Ames

1

STEVEN LEE MAHOOD, Petitioner, v. DONNIE AMES, Superintendent, Mount Olive Correctional Complex, Respondent.

Civil Action No. 2:16-cv-01853

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

March 28, 2024

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

Pending before the court is Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 [ECF No. 1]. By Standing Order, this matter is referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons appearing to the Court, it is hereby ORDERED that the referral of this matter to the Magistrate Judge is WITHDRAWN and Petitioner's Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [ECF No. 1] is DENIED.

I. RELEVANT PROCEDURAL HISTORY^[1]

On or about August 7, 2007, Petitioner's wife, Ramona Mahood (“Ramona”), died after suffering “multiple powerful blows to her head[,] face and torso as well as manual strangulation . . . there was also evidence of injury to her genitals and to the area around her anus ....” State v. Mahood, 708 S.E.2d 322, 325 (W.Va. 2010) (“Mahood I”). Petitioner denied killing Ramona, telling police that she arrived home already injured. However, Petitioner's statements to police were inconsistent with those of other witnesses who saw Petitioner and Ramona together earlier that evening. Id. at 325. Petitioner was indicted on one count of murder and two counts of possession of stolen vehicles. [ECF No. 18, Ex. 1]. In his trial and direct appellate proceedings, Petitioner was represented by Lee F. Benford, II and Morgan B. Hayes.

A. Petitioner's trial and direct appeal.

At trial, Petitioner attempted to establish a diminished capacity defense based upon voluntary intoxication through the testimony of several witnesses who either observed him drinking that evening or who were aware of his history of being intoxicated. However, Petitioner did not testify at his trial, and the defense did not present any expert testimony on the diminished capacity issue. Ultimately, the trial court determined that the evidence was insufficient to warrant a diminished capacity jury instruction. A summary of the relevant trial testimony, as well as the relevant testimony provided at Petitioner's omnibus hearing, is provided in the circuit court's Amended Judgment Order denying the petitioner's first habeas corpus petition. [ECF No. 18, Ex. 16 at 3-12].

Following a four-day jury trial, Petitioner was found guilty of first degree murder without a recommendation for mercy. [Id., Ex. 2]. On April 14, 2009, Petitioner was sentenced to life without mercy. [ECF No. 18, Ex. 3]. He appealed his judgment to the Supreme Court of Appeals of West Virginia (the “SCAWV”) raising the following grounds for relief:

1. The trial court erred in refusing to give Defendant's proposed voluntary intoxication instruction.

2. The trial court erred in denying Defendant's motion for mistrial based on the State improperly introducing evidence of Defendant's bad character in the presence of the jury.

[Id., Ex. 4]. The SCAWV granted the Petition for Appeal only on the second ground for relief. [Id., Ex. 5]. Specifically, the SCAWV considered the following claim: whether Petitioner was “denied a fair trial because the jury heard inadmissible evidence about an adulterous affair he had with a State witness [Lisa Whitehouse].” 708 S.E.2d at 323. After additional briefing on this claim, the SCAWV affirmed the judgment of the trial court on October 14, 2010. [Id., Ex. 9]. Petitioner did not seek a writ of certiorari in the Supreme Court of the United States.

B. Petitioner's first state habeas corpus proceedings.

On or about January 1, 2010, Petitioner filed a pro se petition for a writ of habeas corpus in the Circuit Court of Jackson County, raising the following grounds for relief:

1. Denial of 6th Amendment Right and Article III Section 14 of the WV Const. due to five allegedly unqualified jurors sitting on the jury.

2. Denial of right to present a complete defense under the 6th and 14th amendments for the trial court's alleged failure to give a voluntary intoxication instruction.

3. Denial of effective assistance of counsel as guaranteed by the West Virginia constitution and the “First, Fifth, Sixth, Eighth and Fourteenth Amendments” to the United States Constitution based on counsel's failure to: (a) determine Petitioner's blood-alcohol level within hours of his arrest or to secure a forensic toxicologist to inform the jury of cognitive and behavioral effects of chronic alcohol dependency; (b) secure a jury free from exception as required by West Virginia statutory and constitutional law; and (c) secure an impartial and unbiased jury.

[ECF No. 18, Ex. 11].

Attorney D. Adrian Hoosier, II (“Hooiser”) was then appointed to represent Petitioner and he filed an Amended Petition raising the following grounds for relief:

1. Denial of fair trial under 6th and 14th amendments because of prejudicial pretrial publicity.

2. Denial of right to a complete defense for the failure of the trial court to give a voluntary intoxication instruction.

3. Ineffective assistance of trial counsel for failure to fully investigate and prepare his defense.

4. Ineffective assistance of trial counsel for failure to present mitigation evidence during the unitary trial.

5. Severe sentence and [sic] expected, excessive sentence, mistaken advice of counsel as to parole or probation eligibility, and the amount of time served on sentence/credit for time served.

6. Prosecutorial misconduct in violation of due process and right to a fair trial by introducing improper character evidence.

[Id., Ex. 12]. Then, on or about February 12, 2013, Petitioner filed a Supplemental Amended Petition, which incorporated the above-referenced claims and added the following pro se supplemental claims of ineffective assistance of counsel and cumulative error:

7. Ineffective assistance of trial counsel for failure to object and move for a mistrial due to repeated questioning of witnesses by the trial court concerning the petitioner's location at the car where hair evidence was found.

8. Ineffective assistance of trial counsel for failure to object to testimony and prosecutor's argument concerning evidence of sexual assault.

9. Ineffective assistance of trial counsel for eliciting testimony of State's latent print expert that permitted the jury to draw inference that the petitioner had a prior criminal record.

10. Ineffective assistance of trial counsel for failure to provide notice of diminished capacity defense and to seek independent expert concerning effects of alcohol and other drugs.

11. Ineffective assistance of trial counsel for failing to make sufficient argument for mercy.

12. The petitioner contends that the cumulative effect of the errors of ineffective assistance of counsel denied him a fair trial.

[ECF No. 18, Ex. 13 at 14-33]. Petitioner also filed a motion for default judgment based upon the State's failure to respond to the petition until after it had been supplemented by Petitioner. [Id., Ex. 14]. An omnibus evidentiary hearing was held on September 5, 2013. [Id., Ex. 15]. On November 20, 2013, the circuit court denied Petitioner's Supplemental Amended Petition for Writ of Habeas Corpus. [Id., Ex. 16].

Petitioner appealed the denial of his circuit court habeas corpus petition, but only asserted two grounds for relief:

1. The Circuit Court of Jackson County, West Virginia, erred in denying the Petition for Habeas Corpus relief despite evidence establishing that a diminished capacity defense instruction was warranted.

2. The Circuit Court of Jackson County, West Virginia, erred in failing to award [Petitioner] Habeas Corpus relief despite the State's failure to timely respond [to the petition].

[ECF No. 18, Ex. 19]. Petitioner later moved for leave to file a supplemental brief raising additional grounds for relief, which was refused by the SCAWV. [Id., Ex. 20]. On March 16, 2015, the SCAWV found no error on either ground for relief raised in the petition for appeal and affirmed the judgment of the circuit court. Mahood v. Ballard, No. 14-0026, 2015 WL 1244343 (W.Va. Mar. 16, 2015) (“Mahood II”). [ECF No. 18, Ex. 17]. As relevant here, the SCAWV affirmed the circuit court's finding that Petitioner's claim of ineffective assistance of counsel for failing to properly investigate and offer a diminished capacity instruction was meritless because there was no evidence adduced at trial to suggest that he had a diminished capacity at the time the crime was committed. Id. at *8.

C. Petitioner's section 2254 petition.

On February 26, 2016, Petitioner filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, which raises the following grounds for relief:

1. Petitioner was denied his constitutional right to a fair and impartial jury trial and equal protection because five jurors were statutorily disqualified from serving on the jury and there was “extensive, negative, and prejudicial” pretrial publicity.

2. Petitioner was denied meaningful and effective assistance of counsel as secured by the 1st, 5th, 6th, 8th, and 14th Amendment. Specifically, the petitioner contends that his trial counsel failed to:

(a) Properly pursue a diminished capacity defense, including presenting the testimony of a forensic toxicologist (b) Secure a jury pool of prospective jurors free from exception;

(c) Consider or seek a bifurcated trial;

(d) Object to prejudicial testimony that was unrelated to an element of the crime alleged in the indictment;

(e) Cross-examine Dr. Kaplan; and

(f) Present mitigation evidence and argument in a

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