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Payne v. Ballard

Supreme Court of West Virginia

June 19, 2017

Jason Payne, Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Morgan County 12-P-50

          MEMORANDUM DECISION

         Petitioner Jason Payne, by counsel Kevin J. Watson, appeals the Circuit Court of Morgan County's March 15, 2016, order denying his petition for writ of habeas corpus. Respondent, David Ballard, Warden, Mt. Olive Correctional Complex, by counsel Nic Dalton, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying his request for habeas relief wherein he alleged that he received ineffective assistance of trial counsel. Petitioner further alleges that the circuit court failed to hold an omnibus evidentiary hearing below and erred in denying his petition for habeas corpus on the basis that his grounds for relief were without support and finally adjudicated below.

         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 April of 2006, an informant told police that Keese Bare was dead and that her remains were located in a fire pit at a camp site by the Potomac River referred to as "Lot 17." The informant believed that there were four suspects responsible for the death of Bare: petitioner; Vernon Kerns Jr.; Mr. Kerns' sister Amanda Kerns Ecatah; and Jerome "B.J." Smith. A police investigation revealed that Bare was involved in a credit card theft/fraud ring and was murdered because the other individuals involved believed that she was about to inform law enforcement of the group's activities. An expert from the Smithsonian Institution examined the bone fragments found in the fire pit and positively identified the victim as Keese Bare.

         In April of 2007, petitioner was indicted on two counts of breaking and entering, one count of grand larceny, one count of destruction of property, and one count of transferring stolen property.[1] A superseding indictment was later filed and it replaced the previous counts with the following: two counts of breaking and entering, one count of grand larceny, and one count of misdemeanor destruction of property. On April 22, 2007, petitioner's jury trial commenced and he was ultimately convicted on all counts.

         In September of 2007, as a result of the same incident, petitioner was indicted on one count of first-degree murder and one count of conspiracy. Petitioner's jury trial commenced and he was ultimately convicted of one count of second-degree murder, a lesser included offense of first-degree murder.

         In April of 2008, following petitioner's convictions for breaking and entering, grand larceny, and misdemeanor destruction of property, the State filed an information seeking to enhance his sentence and charge him as a recidivist.[2] In June of 2008, subsequent to his convictions above, the circuit court sentenced petitioner in both cases to the following: a term of incarceration of not less than one nor more than ten years for his conviction of one count of breaking and entering; not less than two nor more than ten years for his conviction of one count of breaking and entering, based upon his admission that he was previously convicted of a felony; not less than one nor more than ten years for his conviction of one count of grand larceny; and one year for his conviction of one count of misdemeanor destruction of property. Petitioner's sentences were ordered to run consecutively to each other. Additionally, petitioner was sentenced to a term of incarceration of forty years for his second-degree murder conviction and to an additional term of five years for his recidivist status. The circuit court ordered that his sentence for the second-degree murder conviction and his additional sentence for his recidivist conviction run consecutively to the sentences imposed above.

         In 2012, petitioner filed two direct appeals from both circuit court proceedings claiming the following errors: (1) the circuit court failed to direct a verdict in his favor; (2) the circuit court failed to instruct the jury on the definition of the word "duty;" (3) the circuit court instructed the jury that it could continue to deliberate or recess until the next judicial day; (4) the State failed to disclose phone records which "most probably contained" exculpatory evidence; (5) the circuit court admitted certain evidence at trial under the business records exception to the hearsay rule; (6) the circuit court failed to suppress petitioner's statements made to police; and (7) the circuit court sentenced petitioner in a manner that "should shock the conscience of the Court and society." This Court affirmed petitioner's convictions in two memorandum decisions. See State v. Payne, No. 11-1042, 2012 WL 3104259 (W.Va. June 22, 2012) (memorandum decision); and State v. Payne, No. 11-1045, 2012 WL 3104253 (W.Va. June 22, 2012) (memorandum decision).

         In November of 2012, petitioner filed a petition for writ of habeas corpus relief with the circuit court alleging (1) that he received ineffective assistance counsel at trial; (2) that the circuit court failed to instruct the jury on the definition of the word "duty;" (3) that the circuit court failed to direct a verdict in his favor; (4) that the State failed to disclose exculpatory evidence; (5) that the circuit court failed to suppress petitioner's statements made to police; (6) cumulative error; and (7) additional grounds. The circuit court entered an order on March 15, 2016, denying petitioner's petition for writ of habeas corpus without holding an omnibus evidentiary hearing. It is from this order that petitioner appeals.

         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).

         First, we address petitioner's arguments that the circuit court erred in denying his request for an omnibus evidentiary hearing based on its finding that his grounds for relief were without support and finally adjudicated below. Specifically, he contends that his petition for writ of habeas corpus presented probable cause that he is entitled to his "day in court, " and that the circuit court violated West Virginia Code § 53-4A-7(a). West Virginia Code § 53-4A-7(a) provides, in part, that

[i]f the petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or the record in the proceedings which resulted in the conviction and sentence, or the record or records in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, show to the satisfaction of the court that the petitioner is entitled to no relief, or that the contention or ...

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