Clinton C. Simpson, Petitioner Below, Petitioner
v.
David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent
(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 ...