Dennis Gale Hubbard, by counsel Paul R. Cassell, appeals the
Circuit Court of Mercer County's January 20, 2016, order
denying his amended petition for writ of habeas corpus.
Respondent Ralph Terry,  Warden, by counsel Nic Dalton, filed a
response. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court erred in denying his amended
habeas petition on the grounds of ineffective assistance of
counsel, a change in the law since the time of his
conviction, the failure to preserve certain evidence, and
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
of 2005, petitioner shot and killed Ricardo Edward Lee after
Mr. Lee entered petitioner's residence. By his own
admission, petitioner fired ten shots at Mr. Lee, emptying
his firearm. During the February of 2006 term of court,
petitioner was indicted on one count of first-degree murder.
Petitioner's trial commenced in August of 2006. At trial,
petitioner argued that he acted in self-defense and claimed
that Mr. Lee was holding a knife at the time of the shooting.
However, several witnesses testified that they did not see
Mr. Lee holding a knife at the time of the shooting or see
him move toward petitioner in a threatening manner.
Ultimately, the jury convicted petitioner of one count of
second-degree murder. Thereafter, petitioner filed a motion
for a new trial, which the circuit court denied. By order
entered in October of 2006, the circuit court sentenced
petitioner to a term of incarceration of forty years.
Petitioner thereafter appealed his conviction to this Court,
and we refused the same by order entered in September of
filed a petition for writ of habeas corpus in May of 2010.
The circuit court appointed an attorney to represent
petitioner and he later filed an amended petition.
Ultimately, the circuit court denied that petition in May of
2010. Thereafter, petitioner filed a second petition that the
circuit court denied in October of 2010.
of 2012, petitioner filed a third petition for writ of habeas
corpus in the circuit court. After the circuit court
appointed counsel in February of 2013, the State conceded
that petitioner received ineffective assistance of counsel in
his prior habeas proceeding. As such, the circuit court
permitted petitioner to file an amended petition. In November
of 2014, the circuit court held an omnibus evidentiary
hearing. The circuit court then permitted evidentiary
depositions of fact and expert witnesses. In June of 2015,
the parties presented their final arguments to the circuit
court. By order entered on January 20, 2016, the circuit
court denied petitioner's amended petition. It is from
that order that petitioner appeals.
Court reviews appeals of circuit court orders denying habeas
corpus relief under the following standard:
"In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a
three-prong standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly
erroneous standard; and questions of law are subject to a
de novo review." Syllabus point 1, Mathena
v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226
W.Va. 375, 701 S.E.2d 97 (2009).
appeal to this Court, petitioner argues that he was entitled
to habeas relief due to trial counsel's ineffective
representation, a favorable change in the law with
retroactive effect, a violation of his state and federal due
process rights by the State's failure to preserve certain
evidence, and cumulative error. The Court, however, does not
agree. First, the record is clear that petitioner's due
process rights were not violated by the State's failure
to preserve evidence. According to petitioner, a radio
interview that he gave shortly after the crime was played for
the jury during trial. According to petitioner, the
individual who interviewed him indicated he worked for a
radio station but may have actually been a police officer.
Accordingly, petitioner argues that his due process rights
and right to effective assistance of counsel were violated by
trial counsel's failure to transcribe the entirety of the
interview, especially in light of the fact that the State can
no longer produce the recording. This Court, however, finds
petitioner provides no evidence in support of his allegation
that his interviewer may have been a police officer. He
further provides no argument as to how the recording in
question would support this bald assertion. Instead,
petitioner simply argues that there is a "presumption of
prejudice" when "substantial and significant"
portions of the record are omitted in situations where a
defendant is no longer represented by trial counsel. U.S.
v. Preciado-Corbodas, 981 F.2d 1206, 1212 (11th Cir.
1993). He also argues that this Court has held that failure
to ensure that crucial parts of the trial are on the record
can constitute ineffective assistance of counsel. Myers
v. Painter, 213 W.Va. 32, 37-38, 576 S.E.2d 277, 282-83
(2002). Simply put, the cases upon which petitioner relies
are not persuasive, as they deal with situations unlike the
one on appeal. Specifically, petitioner relies on cases that
require a record be made for purposes of meaningful appeal
and that govern instances of missing evidence that the State
intends to use at trial or that was subject to discovery
prior to trial. Petitioner has already had the opportunity to
appeal his conviction, and this Court refused the same.
Moreover, petitioner does not allege that the State
improperly withheld the recording in question during
discovery. In fact, the record is clear that petitioner
received a transcribed version from his trial attorney. As
such, we find no error in the circuit court denying
petitioner habeas relief in this regard.
petitioner's remaining assignments of error, upon our
review and consideration of the circuit court's order,
the parties' arguments, and the record submitted on
appeal, we find no error or abuse of discretion by the
circuit court. Our review of the record supports the circuit
court's decision to deny petitioner post-conviction
habeas corpus relief based on these alleged errors, which
were also argued below. Indeed, the circuit court's order
includes well-reasoned findings and conclusions as to the
assignments of error raised on appeal. Given our conclusion
that the circuit court's order and the record before us
reflect no clear error or abuse of discretion, we hereby
adopt and incorporate the circuit court's findings and
conclusions as they relate to petitioner's assignments of
error raised herein and direct the Clerk to attach a copy of
the circuit court's January 20, 2016, "Order"
to this memorandum decision.