Norwood v. Ames

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TRAVIS RAY NORWOOD, Petitioner, v. DONNIE AMES, Respondent.

Civil Action No. 5:22-00339

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

January 4, 2023

PROPOSED FINDINGS AND RECOMMENDATION

OMAR J. ABOULHOSN, UNITED STATES MAGISTRATE JUDGE

Pending before the Court are the following: (1) Petitioner's “Motion to Stay and Abey Pending Resolution of Second State Habeas Proceedings” (Document No. 5), filed on August 17, 2022; and (2) Respondent's Motion to Dismiss (Document No. 11), filed on November 3, 2022. By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 4.) Having thoroughly examined the record in this case, the undersigned respectfully recommends that the District Court grant Respondent's “Motion to Dismiss” (Document No. 11) and deny Petitioner's Motion to Stay (Document No. 5).

FACTUAL BACKGROUND

1. Criminal No. 16-F-136:

On May 4, 2017, following a two-day jury trial, Petitioner was convicted in the Circuit Court of Greenbrier County of delivery of a controlled substance (heroin) in violation of West Virginia Code § 60A-4-401(a). (Document Nos 11-2 and 11-3.) On May 19, 2017, the State filed a recidivist information seeking an enhancement under West Virginia Code §§ 61-11-18 and 61 119. (Document No. 11-4.) In support, the State listed the following prior convictions: (1) A February 1, 2016 conviction in the State of Virginia for distribution of, or possession with the intent to distribute, more than one-half ounce but not more than five pounds of marijuana, for which Petitioner was sentenced to two years imprisonment; and (2) An October 28, 2008 conviction in the State of Virginia for eluding the police, for which Petitioner was sentenced to four years in the penitentiary. (Id.) On September 25, 2017, following a jury trial, Petitioner was determined to be the same person convicted of the October 28, 2008 and February 1, 2016 felony offenses. (Document No. 11-5.) By Order entered on October 10, 2017, Petitioner was sentenced to life imprisonment. (Document No. 11-6.)

In January 2018, Petitioner filed two Motions for Reconsideration of Sentence pursuant to Rule 35. (Document No. 11-8.) Specifically, Petitioner requested leniency in light of his drug addiction, his desire to participate in a drug treatment program, and the fact he had been incarcerated for a total of 16 months. (Id.) By Order entered on January 31, 2018, the Circuit Court denied the Motions finding that Petitioner's life sentence under W.Va. Code § 61-11-18(c) was mandatory. (Document No. 11-9.) The Circuit Court further determined that notwithstanding the mandatory sentence, Petitioner had “failed to present any compelling justification that warrant[ed] a reconsideration of his sentence.” (Id.) On June 18, 2018, Petitioner filed his third Motion for Reconsideration of Sentence. (Document No. 11-10.) By Order entered on June 19, 2018, the Circuit Court denied the Motion as untimely. (Id.)

By Amended Sentencing Order entered on July 23, 2019, the Circuit Court clarified that Petitioner would be eligible for parole after serving fifteen (15) years. (Document No 11-11.) On August 20, 2019, Petitioner filed his fourth Motion for Reconsideration of Sentence arguing that his life sentence was illegal. (Document No. 11-12.) The above Motion is currently pending before the Circuit Court. (Document No. 11-13.)

2. Direct Appeal and Petition for Writ of Certiorari:

On November 3, 2017, Petitioner filed his Notice of Appeal. (Document No. 11-14.) Petitioner asserted the following assignments of error: (1) Insufficient evidence to sustain conviction; (2) Illegal sentence in light of probationary status; and (3) Life sentence in violation of the proportionality clause contained in Article III, Section 5 of the West Virginia Constitution. State v. Norwood, 242 W.Va. 149, 153, 832 S.E.2d 75, 79 (2019). On May 30, 2019, the Supreme Court of Appeals of West Virginia (“SCAWV”) affirmed Petitioner's conviction and sentence. Id. On January 31, 2020, following a request to extend time, Petitioner filed his petition for writ of certiorari with the United States Supreme Court. (Document No. 11-15.) On March 9, 2020, the United States Supreme Court denied the petition.

3. First State Habeas Petition:

On October 3, 2019, Petitioner, proceeding pro se, filed his Petition for Writ of Habeas Corpus in the Circuit Court of Greenbrier County. Norwood v. Ames, Case No. 19-C-130 (Cir. Ct. Greenbrier Co.); (Document No. 11-17.) In his Petition, Petitioner raised the following grounds for habeas relief: (1) Ineffective assistance of recidivist trial counsel, E. Lavoyd Morgan, Jr.; (2) Ineffective assistance of recidivist trial counsel, Jeffrey Rodgers; and (3) Ineffective assistance of trial counsel. (Id.) By Order entered on December 31, 2019, the Circuit Court denied Petitioner's habeas petition. (Document No. 11-19.)

On February 3, 2020, Petitioner filed his Notice of Appeal. (Document No. 11-20.) Petitioner argued that the Circuit Court “abused its discretion by failing to appoint counsel or hold an omnibus hearing to address” his ineffective assistance of counsel claims. Norwood v. Ames, 2021 WL 3620458, * 4 (W.Va. Aug. 16, 2021). By Memorandum Decision entered on August 16, 2021, the SCAWV affirmed the Circuit Court's denial of Petitioner's habeas petition. (Id., p. 7.) On September 16, 2021, the SCAWV issued its Mandate. (Document No. 11-21.)

4. Second State Habeas Petition:

On September 11, 2020, Petitioner, proceeding pro se, filed his second Petition for Writ of Habeas Corpus in the Circuit Court of Greenbrier County. Norwood v. Ames, Case No. 20-C-89 (Cir. Ct. Greenbrier Co.); (Document No. 11-22.) By Order entered on August 6, 2021, the Circuit Court appointed habeas counsel after determining that certain grounds asserted by Petitioner had not “been previously and finally adjudicated or waived.” (Document No. 11-23.) On April 29, 2022, Petitioner, by counsel, J. Brent Easton, filed his Amended Habeas Petition asserting the following grounds for relief: (1) Disproportionate sentence in violation of the West Virginia Constitution; and (2) Ineffective assistance of counsel during Petitioner's recidivist trial and sentencing hearing. (Document No. 11-24.) Petitioner represents in his instant Section 2254 Petition that following an evidentiary hearing, the Circuit Court “denied relief from the bench” and has not yet entered the final order. (Document No. 1, p. 12.) Petitioner further states that he intends to appeal the Circuit Court's denial of habeas relief to the SCAWV. (Id., p. 5.)

5. Section 2254 Petition:

On August 15, 2022, Petitioner, by counsel, Jeremy Benjamin Cooper, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody and Memorandum in Support. (Document Nos. 1 and 2.) In his Petition, Petitioner asserts the following grounds for relief: (1) Unconstitutional disproportionate sentence; (2) Ineffective assistance of counsel for advising waiver of argument concerning the proportionality of his sentence; and (3) Ineffective assistance of counsel by the abject failure of his retained counsel (E. Lavoyd Morgan) to appear or other participate in his case. (Id.) As Exhibits, Petitioner attaches the following: (1) A copy of the SCAWV's Opinion filed on May 30, 2019, affirming Petitioner's conviction and sentence (Document No. 1-1.); and (2) A copy of the SCAWV's Memorandum Decision filed on August 16, 2021, affirming the denial of Petitioner's first State habeas Petition (Document No. 22.).

On August 17, 2022, Petitioner filed a “Motion to Stay and Abey Pending Resolution of Second State Habeas Proceedings.” (Document No. 5.) In support, Petitioner explains that the Circuit Court orally denied his second State habeas Petition from the bench at the conclusion of the evidentiary hearing and has not yet entered its final order. (Id.) Petitioner, however, states that it is his “intention to file an appeal of that second habeas petition to the State Supreme Court.” (Id.) Petitioner further acknowledges that even though the grounds asserted in the first State habeas Petition are similar to those asserted in the second State habeas Petition, the first State habeas appeal focused on the Circuit Court's decision not to afford counsel or an evidentiary hearing instead of the the merits of the habeas grounds. (Id.) Petitioner, therefore, acknowledges that his claims are unexhausted. (Id.) Citing Rhines v. Weber, 544 U.S. 269 (2005), Petitioner argues that he is entitled to a stay and abeyance of his Federal petition. (Id.) Specifically, Petitioner argues that he is entitled to a stay “[b]ecause the Petitioner's meritorious claims remain unexhausted below,” and “they will imminently be exhausted via the forthcoming second state habeas appeal, without undue delay.” (Id.)

By Order entered on August 17, 2022, the undersigned directed Respondent to file a Response to Petitioner's “Motion to Stay and Abey Pending Resolution of Second State Habeas Proceedings.” (Document No. 7.) Following the granting of an extension of time, Respondent filed his Motion to Dismiss and Memorandum in Support on November 3 2022. (Document Nos. 11 -12.) First, Respondent acknowledges that Petitioner's above Petition is timely because Petitioner has not used any of his time under the limitations period. (Document No. 12, pp. 7 - 9.) Next, Respondent argues that Petitioner's Petition should be dismissed because Petitioner's claims are “unexhausted and he fails to demonstrate good cause for a stay and abeyance.” (Id., pp. 9 - 11.) Respondent contends that all...