Simpson v. Ballard

         (Kanawha County 15-P-63)

          MEMORANDUM DECISION

         Petitioner Clinton C. Simpson, by counsel Clinton W. Smith, appeals the Circuit Court of Kanawha County's January 15, 2016, order denying his petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel David A. Stackpole, filed a response and supplemental appendix.^[1] On appeal, petitioner argues that the circuit court erred in denying his habeas petition on the grounds of ineffective assistance of trial counsel.

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

         In June of 2012, petitioner, who lived in a home separate from his wife, set his wife's home on fire after becoming upset at rumors that she had cheated on him. He was later arrested and charged with arson in the first degree. At his trial, which commenced on November 4, 2013, four eyewitnesses placed petitioner at his wife's home at the time of the fire and testified to seeing him pour a liquid over the home's front porch. Three of the four witnesses testified that they smelled gasoline. Three witnesses also testified to seeing petitioner go to the rear of his wife's home and, soon thereafter, seeing the rear of the home in flames. The jury returned a verdict of guilty.

         On November 27, 2013, petitioner was sentenced to a determinate term of twenty years of incarceration. He later filed a direct appeal claiming that the circuit court erred in denying his motion to dismiss the indictment for failure to preserve evidence and in denying his motion for a jury instruction on lost evidence. This Court affirmed petitioner's conviction. See State v. Simpson, No. 13-1315, 2014 WL 6607481 (W.Va. Nov. 21, 2014)(memorandum decision).

         In February of 2015, petitioner filed a pro se petition for writ of habeas corpus in the circuit court. Counsel was thereafter appointed to represent petitioner in his habeas proceeding, and on August 11, 2015, petitioner filed an amended petition. Petitioner alleged that his trial attorneys rendered ineffective assistance due to their failure to adequately investigate petitioner's case, sufficiently consult with petitioner, and their deficient conduct at trial. Petitioner argued that, had counsel met with him an adequate number of times, they could have presented evidence that petitioner did not start the fire at his wife's home. Petitioner also stated that counsel did not prepare him to testify and that, had he testified, he would have explained that he did not have the means to ignite a fire. Petitioner also asserted that counsel failed to consult an expert witness who could have testified as to criminal responsibility and competency given petitioner's history of alcohol abuse. Lastly, petitioner argued that counsel failed to prepare him adequately for sentencing. Namely, counsel purportedly failed to prepare him for allocution and failed to review the presentence investigation report with petitioner to correct inaccuracies.

         A hearing on petitioner's amended habeas petition was held on November 9, 2015. At this hearing, the circuit court also heard argument on an additional claimed deficiency in petitioner's representation, which centered on a remark made by the State during its closing argument. The State, in attempting to dispel any notion that one of the eyewitnesses who testified against petitioner was the individual who, in fact, started the fire, stated as follows:

         Not one person who took that stand told you they suspected Quinton Caldwell started that fire.

They told you that he was on the front porch of the neighbor's house. They told you that it was him that even helped clean up. They told you that he went and he was there and gave a statement - went down, gave a recorded statement. Because he's trying to do the right thing.

You know who didn't stick around to give a statement, the only person involved in this case that did not stick around to give a statement? Clinton Simpson. Clinton Simpson is the one that disappeared. Clinton Simpson is the one that fled. That's what guilty people do.

         Petitioner claimed that this remark allowed the jury to infer that his decision not to testify at trial evidenced his guilt. After considering all of these grounds, by order entered on January 15, 2016, his petition was denied. It is from this order that petitioner appeals.

         On appeal, petitioner claims that the circuit court erred in finding that he received effective assistance of counsel. In support of this contention, petitioner asserts that his trial counsel failed to meet with him a sufficient number of times prior to trial, that they failed to discuss his right to testify thoroughly enough to allow him to make an informed decision on that issue, that they failed to properly counsel him on his right of allocution, and that they should have prepared him to testify in case he decided to testify at the last minute. Petitioner also claims that his counsel was deficient in failing to respond to or remedy the State's closing argument remark. Petitioner asserts that counsel should have objected to the remark, sought a limiting instruction, or sought an instruction on flight. Finally, petitioner notes that during his habeas hearing, his trial counsel admitted to not being fully prepared to try his case. Specifically, one of his trial attorneys lamented the inability to locate a witness, testified that there were several "loose ends" in their investigation that she would have liked to have "tied up, " and that she should have filed a motion to continue.

         This 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 ...