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 ...