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Harper v. Ballard

Supreme Court of West Virginia

April 21, 2017

Roger Harper, Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Roane County 16-C-10

          MEMORANDUM DECISION

         Petitioner Roger Harper, pro se, appeals the order of the Circuit Court of Roane County, entered on May 26, 2016, dismissing his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

         The 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.

         In January of 1990, petitioner was indicted on two counts of first-degree murder and one count of malicious wounding after an altercation at a bar, in which he killed two people and wounded another. The circuit court committed petitioner to Weston State Hospital for mental evaluation. While petitioner was determined to be competent to stand trial and criminally responsible for his conduct, one examiner provisionally diagnosed petitioner with intermittent explosive disorder.[1] The examiner opined that, to confirm that diagnosis, alcohol intoxication would need to be ruled out. The examiner noted that there were "some questions" as to whether intermittent explosive disorder was an actual mental condition.

         Petitioner's trial attorneys sought funding to retain a mental health expert to determine whether petitioner suffered from intermittent explosive disorder. Upon the circuit court's approval of funding, petitioner's trial attorneys retained Dr. Ralph Smith, Jr., a psychiatrist. Dr. Smith did not diagnose petitioner with intermittent explosive disorder. Rather, Dr. Smith found petitioner suffered from alcohol abuse. Not satisfied with Dr. Smith's report, petitioner's trial attorneys filed a motion for funding to hire an additional expert.

         The circuit court held a hearing on petitioner's trial attorneys' motion for a second expert on March 4, 1991, at which Dr. Smith was called as a witness. Dr. Smith testified that he was among that group of mental health professionals who doubted intermittent explosive disorder as a valid diagnosis. However, Dr. Smith stated that he accepted that the disorder was a recognized medical diagnosis documented in the Diagnostic and Statistical Manual of Mental Disorders ("DSM") then in effect.[2] Dr. Smith testified that he evaluated whether petitioner had intermittent explosive disorder based on the objective criteria listed in the DSM and determined that petitioner was excluded from having the disorder because one of the rejection criteria was a diagnosis of substance abuse, which Dr. Smith made in petitioner's case. Dr. Smith confirmed that he found that petitioner did not have intermittent explosive disorder "to a reasonable degree of medical certainty" and that he could not think of any reason why he would have been biased against making such a diagnosis if justified by the objective criteria. By an order entered on April 18, 1991, the circuit court denied the motion for funding to retain an additional expert on the ground that "defense counsel was looking for an expert that had the same view as counsel did in regard to the [i]ntermittent [e]xplosive [d]isorder . . . and that said motion is both unreasonable and unnecessary[.]"

         In October of 1991, petitioner was found guilty of two counts of first-degree murder and one count of malicious wounding following a jury trial. With regard to petitioner's first-degree murder convictions, the jury did not make any recommendation of mercy. Accordingly, the circuit court sentenced petitioner to two life terms of incarceration without the possibility of parole, and to a term of two to ten years of incarceration for petitioner's conviction for malicious wounding. The circuit court ordered petitioner to serve his sentences consecutively. Petitioner petitioned this Court to review his convictions in 1992, and the Court refused his appeal.

         In 1993, petitioner filed a petition for a writ of habeas corpus. The proceedings related to that filing were protracted. On March 31, 2003, petitioner's then-counsel filed an amended habeas petition, which the circuit court dismissed. In its November 14, 2005, order, the circuit court found that the amended petition was "a mere recitation of possible grounds for relief . . . without sufficient factual support." The circuit court designated the dismissal as without prejudice pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings and gave petitioner leave to file another amended petition. Following the Rule 4(c) dismissal, petitioner received new habeas counsel, Attorney Dennis H. Curry. Attorney Curry filed an amended habeas petition on May 25, 2007, alleging that petitioner was denied his right to present a meaningful defense by the circuit court's denial of his motion for funding to retain an additional expert. By an order entered on November 29, 2007, the circuit court found that this amended petition set forth "a prima facie case" for habeas relief and directed respondent to file a response. Respondent filed his response on February 11, 2008.

         The circuit court denied petitioner's May 25, 2007, amended habeas petition by an order entered January 28, 2011. In that order, the circuit court first addressed whether petitioner waived all grounds for relief other than the issue of the denial of his motion for funding to retain an additional expert in his criminal proceeding. The circuit court found that petitioner waived all other grounds on October 4, 2008, when he informed the court by letter that Attorney Curry's previously-filed motion to withdraw as counsel resulted from a misunderstanding where he miscomprehended his attorney's instructions. Petitioner informed the circuit court that "he did not desire to waste [Attorney] Curry's time or the [c]ourt's time with issues without merit." The circuit court found that petitioner specifically stated that "[he] desired to retain [Attorney] Curry as counsel."

         The circuit court proceeded to address the single issue raised by Attorney Curry in the May 25, 2007, amended petition, finding that "it was determined by the parties" that the court could decide the issue "without further evidentiary hearing." With regard to whether petitioner should have been allowed to retain an additional expert in his criminal proceeding, the circuit court reached the same conclusion as it did in its April 18, 1991, order: that the request for another evaluation to determine whether petitioner had intermittent explosive disorder was "unreasonable and unnecessary" given that "Dr. Smith conducted an objective evaluation." The circuit court noted that it came to this conclusion after "[a] review of Dr. Smith's testimony." On May 24, 2011, Attorney Curry filed a motion for relief from judgment on petitioner's behalf pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. The circuit court denied the Rule 60(b) motion by an order entered on June 27, 2011. Petitioner appealed the circuit court's June 27, 2011, order to this Court which affirmed the denial of the Rule 60(b) motion in State ex rel. Harper v. Ballard, No. 11-1083, at 2 (W.Va. Supreme Court, February 11, 2013) (memorandum decision).

         On February 14, 2016, petitioner filed the instant habeas petition alleging that Attorney Curry was ineffective by (1) coercing him into waiving the grounds for relief raised in the amended petition filed by a previous attorney on March 31, 2003, and dismissed by the circuit court on November 14, 2005; and (2) appealing the June 27, 2011, order denying Rule 60(b) motion for relief from judgment instead of appealing the underlying order, entered on January 28, 2011, that denied the amended habeas petition filed by Attorney Curry on May 25, 2007. By order entered on May 26, 2016, the circuit court dismissed the instant petition on the ground that "the grounds for relief [petitioner] has asserted in the current [p]etition have been previously and finally adjudicated or waived."

         Petitioner now appeals the circuit court's May 26, 2016, order dismissing his habeas petition. We apply the following standard of review in habeas appeals:

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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). A court having jurisdiction over habeas corpus proceedings may dismiss a petition for a writ of habeas corpus without a hearing "if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no ...


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