Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parker v. Williamson

Supreme Court of West Virginia

May 22, 2017

David Allen Parker, Petitioner Below, Petitioner
v.
Mark Williamson, Warden, Denmar Correctional Center, Respondent Below, Respondent

         Marion County 16-C-15

          MEMORANDUM DECISION

         Petitioner David Allen Parker, by counsel Heidi M. Georgi Sturm, appeals the Circuit Court of Marion County's February 8, 2016, order denying his petition for writ of habeas corpus.[1] Mark Williamson, Warden, Denmar Correctional Center, by counsel Benjamin Freeman, filed a response in support of the circuit court's order, to which petitioner filed a reply. Respondent filed a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying his request for habeas relief wherein he alleged ineffective assistance of counsel and a violation of his due process and liberty interest by the West Virginia Board of Probation and Parole.

         This 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In July of 2001, petitioner was arrested, along with two co-defendants, for the murder of Arthur C. Warren. On July 19, 2001, petitioner pled guilty to first-degree murder, in violation of West Virginia Code § 61-2-1. At the time of the incident, petitioner was seventeen years old. He was sentenced on September 13, 2001, to a lifetime term of incarceration, with mercy.

          In September of 2002, petitioner filed a petition for habeas corpus relief with the circuit court alleging (1) mental incapacity at the time of the crime; (2) ineffective assistance of trial counsel; (3) excessive sentence; (4) newly discovered evidence; (5) defects in the indictment; (6) involuntary guilty plea; (7) suppression of helpful evidence by the prosecutor; (8) the State's knowing use of perjured testimony; (9) the trial court lacked jurisdiction; (10) no preliminary hearing; (11) severer sentence than expected; and (12) mistaken advice of counsel as to parole or probation eligibility. In June of 2005, petitioner filed an addendum to his petition for writ of habeas corpus which was adopted by the circuit court as his amended habeas corpus petition. Following an omnibus evidentiary hearing in January of 2009, the circuit court entered an order on October 8, 2009, denying petitioner's amended petition for writ of habeas corpus.

         In January of 2016, petitioner filed another petition for habeas corpus relief with the circuit court alleging (1) ineffective assistance of trial counsel; (2) disproportionate sentence; (3) mental incapacity at the time of the crime; (4) violation of due process and liberty interest by parole board; (5) involuntary guilty plea; (6) prejudicial pretrial publicity; and (7) newly discovered evidence. Following an omnibus evidentiary hearing, the circuit court found that all of the issues raised in petitioner's second petition for habeas corpus relief, except for the alleged violation of his due process and liberty interest by the parole board, had been raised in the previous petition and finally adjudicated or waived at the January 6, 2009, omnibus hearing. The circuit court also found that the decision to grant or deny parole is a discretionary assessment left to the West Virginia Board of Probation and Parole and, thus, it had no jurisdiction over the parole board issues raised by petitioner. Syl. Pt. 3, Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d 301 (1981). The circuit court entered an order on February 8, 2016, denying petitioner's petition for writ of habeas corpus. This appeal followed.

         This Court reviews a circuit court order 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).

On appeal, petitioner contends that the circuit court erred in denying his second habeas petition. Petitioner alleges that his first habeas attorney failed to "investigate, prepare for[, ] or call any witnesses" at the omnibus evidentiary hearing. "In West Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984): (1) counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). We have also said,
[i]n deciding ineffective of assistance claims, a court need not address both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test.

Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).

         Respondent contends that petitioner had one omnibus evidentiary hearing in January of 2009, wherein the circuit court carefully addressed and properly dismissed each of petitioner's contentions and the petition. See Losh v. McKenzie, 166 W.Va. 762, 764, 277 S.E.2d 606, 609 (1981) (holding that every person "convicted of a crime shall have . . . one omnibus post-conviction habeas corpus hearing at which he may raise any collateral issues which have not previously been fully and fairly litigated."). Respondent concedes that petitioner made allegations regarding ineffective assistance of habeas counsel, but argues that those allegations are insufficient to warrant a hearing and appointment of counsel based on the present record.[2]We agree with respondent.

         Petitioner fails to establish how habeas counsel failed to investigate or prepare for the hearing. Petitioner makes general statements regarding habeas counsel's alleged "failure to review" the court file, "investigate the matter on his own, " or "properly prepare for the omnibus hearing" but provides no evidence establishing how counsel's performance was deficient. Petitioner argues that the circuit court's denial of his first habeas petition is evidence of counsel's inadequate representation. We do not agree, given that the circuit court in the prior proceeding articulated the reasons petitioner was not entitled to relief on the grounds raised. Therefore, regarding petitioner's allegations, we find that the performance of his habeas counsel did not fall below an objective standard of reasonableness and, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.