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Perry v. Terry

Supreme Court of West Virginia

February 23, 2018

Andrew Perry, Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Wayne County 16-C-117

          MEMORANDUM DECISION

         Petitioner Andrew Perry, pro se, appeals the Circuit Court of Wayne County's February 13, 2017, order denying his second petition for writ of habeas corpus.[1] Respondent Ralph Terry, Acting Warden of Mt. Olive Correctional Complex, by counsel Sarah B. Massey, filed a response and supplemental appendix.[2] Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in concluding that his ineffective assistance of habeas counsel claim was previously and finally adjudicated and in denying his claim that he received ineffective assistance of habeas 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.

         On July 5, 2005, petitioner was indicted on one count of first-degree murder. Petitioner entered into a plea agreement with the State whereby he agreed to plead guilty in exchange for the State's agreement to stand silent at sentencing. Petitioner argued for mercy, but the circuit court sentenced him to life imprisonment without mercy. Petitioner filed two direct appeals to this Court, which we refused in 2006 and 2007.

          On August 3, 2010, with the assistance of counsel, petitioner filed his first petition for writ of habeas corpus. On November 11, 2011, and April 18, 2012, the circuit court conducted an omnibus hearing. The circuit court denied petitioner's first habeas petition on July 16, 2012, which we affirmed in Perry v. Ballard, No. 12-0941, 2013 WL 2462195 (W.Va. June 7, 2013)(memorandum decision).

         Petitioner, pro se, filed a second petition for writ of habeas corpus, which is the subject of the instant appeal. Petitioner advanced four grounds for relief: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, ineffective assistance of habeas counsel, and trial court error. After reviewing the petition, the record in petitioner's prior habeas, and various trial court records, but without holding a hearing or appointing counsel, the circuit court denied petitioner's second petition on February 13, 2017. In support of its denial, the circuit court found that petitioner's ineffective assistance of trial counsel claim was previously and finally adjudicated in his prior habeas proceeding. The circuit court found that due to the prior omnibus hearing, petitioner's ineffective assistance of appellate counsel claim was waived or, alternatively, previously and finally adjudicated along with petitioner's ineffective assistance of trial counsel claim. Although the circuit court found that petitioner's ineffective assistance of habeas counsel claim was also waived or previously and finally adjudicated because the claim implicated trial and appellate counsels' purported deficiencies, it nonetheless provided additional support from petitioner's other proceedings to support the summary dismissal of this claim. Finally, the circuit court found that petitioner waived his right to assert the alleged trial error and that such ground was not cognizable in habeas. 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).

         We also bear in mind that

[a] prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing; newly discovered evidence; or, a change in the law, favorable to the applicant, which may be applied retroactively.

Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

         On appeal, petitioner first asserts that the circuit court erred in summarily dismissing his ineffective assistance of habeas counsel claim on the ground that such was previously and finally adjudicated or waived. Petitioner argues that dismissing this claim without developing the record is "precipitous" and violative of his rights. He further argues that he "would have had to be psychic in order to raise this ground because his habeas counsel had not even performed, let alone performed ineffectively."

         We find no error in the circuit court's summary dismissal of petitioner's second habeas petition. West Virginia Code ...


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