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Lind v. Ballard

Supreme Court of West Virginia

October 13, 2017

Jonathan Lind, Petitioner Below, Petitioner
v.
David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         (Kanawha County 16-P-37)

          MEMORANDUM DECISION

         Petitioner Jonathan Lind, pro se, appeals the October 20, 2016, order of the Circuit Court of Kanawha County denying his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel Robert L. Hogan, filed a 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.

         On March 31, 2006, petitioner killed Edward Ayers in the victim's home. According to the investigating officer's grand jury testimony, petitioner then stole the victim's credit card and vehicle and went on a shopping spree. On July 26, 2006, the grand jury returned a five-count indictment against petitioner: one count of murder, in violation of West Virginia Code § 61-2-1; one count of first-degree robbery, in violation of West Virginia Code § 61-2-12(a)(1); and three counts of forgery of a credit card, in violation of West Virginia Code § 61-3-24a(c).

         On the first day of trial, March 26, 2007, [1] the circuit court denied petitioner's March 20, 2007, motion for appointment of co-counsel. The circuit court found that the motion was not timely filed and that given petitioner's attorney's extensive experience, he "would be more than adequately represented."

         During the presentation of the State's case, Steven Jones testified that he accompanied petitioner on the shopping spree following the victim's death, during which petitioner used the victim's credit card at various retailers and traded the victim's vehicle for crack cocaine. Mr. Jones was cross-examined by petitioner's trial attorney.

         Petitioner testified in his case-in-chief that he went to the victim's house to "make some money" by providing sexual favors to the victim. However, an altercation eventually ensued and petitioner hit the victim with a claw hammer and then took the victim's wallet, keys, and vehicle. Petitioner testified that he traded the vehicle for crack cocaine the following morning. Petitioner admitted that he used the victim's credit card on two occasions when he was with Mr. Jones. However, petitioner testified that Mr. Jones used the credit card on the third occasion after petitioner had given it to Mr. Jones while the two were at the drive-thru at a McDonald's. Also, the circuit court allowed petitioner to testify that the victim had a tendency to get into altercations with other persons.

         Petitioner next called Robert Shingleton to testify as to an altercation Mr. Shingleton had with the victim in 2004. Mr. Shingleton took the stand outside the presence of the jury and testified that he would follow his attorney's advice to invoke his constitutional privilege not to incriminate himself given the pending appeal of his malicious wounding conviction that resulted from the 2004 altercation.[2] Thereafter, the circuit court excused Mr. Shingleton and petitioner rested his case.[3]

         Following jury instructions and closing arguments, the jury convicted petitioner of second-degree murder, first-degree robbery, and three counts of forgery of a credit card. By order entered on June 1, 2007, the circuit court sentenced petitioner to an aggregate term of incarceration of 33 to 150 years. Petitioner sought review of his convictions and sentence in this Court, which refused his appeal on March 20, 2008.

         On October 2, 2008, petitioner filed a petition for a writ of habeas corpus in the circuit court, requesting that his conviction be overturned and that he receive a new trial. The circuit court entered an order appointing an attorney to represent petitioner in that habeas proceeding. On February 10, 2009, petitioner filed an amended habeas petition. The circuit court held an evidentiary hearing on February 18, 2009.

         By order entered on April 17, 2009, the circuit court denied petitioner habeas relief. First, the circuit court found that Mr. Shingleton's unavailability as a witness did not unduly prejudice petitioner's defense. Second, the circuit court found that petitioner's sentence was not unconstitutionally disproportionate to his crimes. However, the circuit court failed to note whether it ensured that petitioner's attorney had explained to him that any claim on the Losh checklist that was not raised in the habeas proceeding would be deemed waived.[4]

         On April 28, 2009, petitioner filed a notice of appeal. Petitioner's first habeas counsel was relieved from further representation and a new attorney was appointed to represent him in his habeas appeal. However, no appeal was filed from the circuit court's April 17, 2009, order denying petitioner's first habeas petition.

         On November 17, 2009, petitioner filed a second habeas petition. By order entered on February 5, 2010, the circuit court appointed an attorney to represent petitioner. On October 22, 2010, petitioner's habeas attorney filed an amended petition. The material submitted to the circuit court by petitioner, pro se, and by his attorney in the second habeas proceeding raised various constitutional claims, several of which petitioner failed to raise in the first habeas proceeding, as well as those claims that were denied in that proceeding. On December 12 and 14, 2012, the circuit court held an evidentiary hearing in the second habeas proceeding. In the interest of allowing petitioner a full and thorough review, the circuit court allowed him to present evidence on all grounds for relief asserted in his amended habeas petition, including those that the circuit court denied in the first habeas proceeding.

         By order entered on January 9, 2014, the circuit court denied petitioner's second habeas petition. The circuit court first found that, while the appellate attorney in the first habeas proceeding failed to file an appeal, petitioner was not prejudiced by that failure because all grounds "he asserted in his initial habeas petition and in his second habeas petition have been collectively considered, addressed, and ruled upon in the instant [o]rder." Next, the circuit court found that, in the second habeas proceeding, petitioner was advised of "his obligation to raise all grounds for post-conviction relief in one proceeding."

         Third, the circuit court found that petitioner's trial attorney from the first habeas proceeding testified that he discussed the Losh checklist with petitioner and that petitioner "fully understood that any issue he did not raise at that time was waived forever." The circuit court further found that, during petitioner's testimony, "he conceded that [his attorney] had reviewed the Losh [l]ist with him and that he understood it at that time." Next, the circuit court determined that petitioner's habeas attorney was not ineffective by failing to raise the issue of trial counsel's performance because the trial record reflected "no grounds on which to base any allegation of ineffective assistance of trial counsel."

         Fifth, the circuit court rejected petitioner's contention that he could not be found guilty of first-degree robbery if his intent to steal from the victim was not formed until after the use of force. The circuit court found that petitioner's argument was not supported by his own trial testimony that he clearly intended to take the victim's property. Finally, with regard to those grounds petitioner previously raised in the first habeas proceeding, the circuit court adopted and incorporated by reference the findings set forth in its April 17, 2009, order denying petitioner's habeas relief.

         Petitioner appealed the circuit court's January 9, 2014, order denying his second habeas petition to this Court, which affirmed the denial of his second habeas petition in Lind v. Ballard ("Lind I"), No. 14-0116, 2015 WL 5125884, at *7 (W.Va. August 31, 2015) (memorandum decision).[5] In Lind I, we declined to consider the issue of whether petitioner's habeas attorney in his second proceeding was ineffective, finding that ...


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