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Stanley M. v. Mirandy

Supreme Court of West Virginia

January 8, 2018

Stanley M., Petitioner Below, Petitioner
v.
Patrick A. Mirandy, Warden, Saint Marys Correctional Center, Respondent Below, Respondent

         Harrison County 13-C-502-1

          MEMORANDUM DECISION

         Petitioner Stanley M., by counsel Sam H. Harrold III, appeals the Circuit Court of Harrison County's August 9, 2016, order denying his petition for writ of habeas corpus. [1] Respondent Patrick A. Mirandy, Warden, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner argues that the circuit court erred in finding that counsel's failure to file an appeal of his first petition for writ of habeas corpus did not amount to ineffective assistance of counsel and that this first petition operated as a procedural bar to the contentions raised in petitioner's instant petition for writ of habeas corpus.

         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 September of 2008, petitioner was indicted on nine sex crimes. Following petitioner's entry into a plea agreement with the State concerning certain counts contained within the indictment and his trial on the remaining counts, petitioner was ultimately convicted of two counts of first-degree sexual abuse and one count of first-degree sexual assault. Petitioner was sentenced, and he thereafter filed a direct appeal to this Court. By order entered on May 5, 2010, this Court refused petitioner's direct appeal.

         On October 7, 2010, petitioner filed his first habeas petition. In petitioner's first petition and Losh checklist, and with the assistance of appointed counsel, he raised the grounds of prejudicial pretrial publicity, suppression of helpful evidence by the prosecutor, the State's knowing use of perjured testimony, ineffective assistance of counsel, failure to provide a copy of the indictment, refusal to subpoena witnesses, prejudicial statements by the prosecutor, sufficiency of the evidence, severer sentence than expected, excessive sentence, and mistaken advice of counsel as to parole or probation eligibility.[2] Petitioner waived numerous other grounds listed on the Losh checklist. Of specific relevance to the instant appeal is petitioner's waiver of the following grounds: mental competency at the time of the crime, consecutive sentences for the same transaction, unfulfilled plea bargain, double jeopardy, no preliminary hearing, challenges to the composition of the grand jury or its procedures, defects in the indictment, pre-indictment delay, constitutional errors in evidentiary rulings, and instructions to the jury. Following an omnibus hearing, the circuit court denied petitioner's first petition by order entered on October 31, 2012. Petitioner did not appeal this order.

         On November 19, 2013, petitioner filed his second petition raising the grounds of ineffective assistance of habeas counsel, failure of habeas counsel to take an appeal, and excessive sentence. Petitioner subsequently filed an amended second petition and Losh checklist raising mental competency at the time of the crime, consecutive sentences for the same transaction, suppression of helpful evidence by the prosecutor, unfulfilled plea bargains, ineffective assistance of counsel, double jeopardy, no preliminary hearing, challenges to the composition of the grand jury or its procedures, defects in the indictment, pre-indictment delay, refusal to subpoena witnesses, constitutional errors in evidentiary rulings, instructions to the jury, sufficiency of the evidence, severer sentence than expected, and excessive sentence.

         On April 13, 2015, the parties appeared for an omnibus hearing on petitioner's second petition. By order entered on August 9, 2016, the circuit court denied petitioner's second petition. The circuit court found that, due to its consideration of and omnibus hearing on petitioner's first petition, the doctrines of waiver and res judicata barred all of petitioner's claims in his second petition except for his ineffective assistance of habeas counsel claim. As to that claim, the circuit court found no ineffective assistance. It is from this order that petitioner appeals.

         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 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 argues that the circuit court erred in determining that his habeas counsel during his first proceeding did not render ineffective assistance by failing to file an appeal. Petitioner conclusorily states that this failure was "objectively unreasonable in that a reasonably-qualified defense attorney would have done so and that, had his defense counsel in the first habeas proceeding taken the appeal, the outcome would have been different." Petitioner also asserts that, "because he was provided ineffective assistance of counsel as asserted above, he could not knowingly waive the grounds for relief asserted herein" and that the circuit court's order concerning these waived grounds was inadequate. Finally, petitioner argues that "due to the ineffective assistance of habeas counsel in failing to file an appeal in the underlying matter, the [c]ourt committed reversible error in determining he was barred from [re]asserting [the grounds raised in his first petition] based on the doctrine of res judicata." Thus, petitioner's assignments of error all concern the alleged ineffective assistance of counsel in failing to file an appeal of the order denying his first petition.

         We review ineffective assistance of counsel claims as follows:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for ...

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