Richard A. White, Petitioner Below, Petitioner
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent
Richard A. White, by counsel Christopher S. Moorehead,
appeals the Circuit Court of Nicholas County's December
29, 2016, order denying his amended petition for writ of
habeas corpus. Respondent Ralph Terry, Acting Warden, by
counsel Shannon Frederick Kiser, filed a
response. On appeal, petitioner argues that the
circuit court erred in denying him habeas corpus relief on
the ground of ineffective assistance of counsel.
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.
December 2, 2009, petitioner shot and killed Harvey Hersman.
Petitioner was subsequently indicted on one count of murder.
Following a two-day trial, the jury found petitioner guilty
of first-degree murder and did not recommend mercy. On August
23, 2011, the circuit court sentenced petitioner to life in
prison without the possibility of parole. Petitioner appealed
to this Court, and we affirmed his sentence and conviction.
See State v. White, 231 W.Va. 270, 744 S.E.2d 668
petitioner filed a pro se petition for writ of habeas corpus.
The circuit court appointed counsel, and on August 6, 2015,
petitioner filed an amended petition for writ of habeas
corpus. In his amended petition, petitioner alleged
ineffective assistance of counsel; denial of his right to a
fair, impartial, and objective jury; prosecutorial
misconduct; and insufficient evidence. The circuit court held
an omnibus hearing on January 14, 2016. By order entered on
December 29, 2016, the circuit court denied petitioner's
amended petition. It is from this order that petitioner
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).
Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va.
375, 701 S.E.2d 97 (2009).
appeal, petitioner challenges only the circuit court's
denial of his ineffective assistance of counsel
claims. Specifically, petitioner claims that his
attorney's representation was deficient for six distinct
reasons: (1) counsel failed to attempt to suppress
petitioner's statement to the police; (2) counsel
precluded petitioner from testifying at trial and failed to
meaningfully advise petitioner as to his right to testify;
(3) counsel failed to object to a jury instruction on
self-defense that included a duty to retreat; (4) counsel
failed to seek a mental health evaluation for competency,
responsibility, and diminished capacity given
petitioner's prior head injury; (5) counsel failed to
strike a juror who was sympathetic to the West Virginia State
Police; and (6) counsel failed to maintain an adversarial
nature by largely failing to object during trial.
arguments presented on appeal were thoroughly addressed by
the circuit court in its order denying petitioner habeas
relief. The circuit court's order includes well-reasoned
findings and conclusions as to the assignments of error now
raised on appeal, and we find no error or abuse of discretion
in the circuit court's denial of petitioner's amended
petition. Because we find no clear error or abuse of
discretion in the circuit court's order or record before
us, we hereby adopt and incorporate the circuit court's
findings and conclusions as they relate to petitioner's
assignments of error raised on appeal and direct the Clerk to
attach a copy of the circuit court's December 29, 2016,
"Final Order Denying Writ of Habeas Corpus and
Dismissing Case" to this memorandum decision.
foregoing reasons, we affirm the circuit court's December
29, 2016, order denying petitioner's amended petition for
writ of habeas corpus.
CONCURRED IN BY: Chief Justice Margaret L. Workman Justice
Robin Jean Davis Justice Menis E. Ketchum Justice Allen H.