Eric A. Foster, Petitioner Below, Petitioner
John T. Murphy, Warden, Huttonsville Correctional Center, Respondent Below, Respondent
Nicholas County 17-C-7
Margaret L. Workman Chief Justice
Eric A. Foster, pro se, appeals the May 12, 2017, order of
the Circuit Court of Nicholas County denying his petition for
writ of habeas corpus. Respondent John T. Murphy, Warden,
Huttonsville Correctional Center, by counsel Shannon
Frederick Kiser, filed a response in support of the circuit
court's order. Petitioner filed a reply.
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 30, 2003, petitioner engaged in a physical
confrontation with Travis Painter with whom he had prior
animus. During this confrontation, Mr. Painter threatened
petitioner with a gun. Petitioner testified at his trial
that, following their confrontation, Mr. Painter invited him
to the camper of his brother-in-law, Mike Murphy, to
"talk things out." The State argued that petitioner
and two accomplices formulated a plan to arm themselves with
weapons and travel to Mr. Murphy's camper to exact
revenge. The State presented evidence that petitioner's
girlfriend was upset, tearfully begging petitioner not to go
to Mr. Murphy's camper. Notwithstanding his
girlfriend's plea, petitioner drove to Mr. Murphy's
camper around midnight. An ensuring shootout left both Mr.
Painter and Mr. Murphy dead. Petitioner and an eyewitness
testified that the first shot was fired from inside
petitioner's truck. However, petitioner testified that he
did not have a gun (as opposed to his two accomplices) and
that he did not shoot anyone.
three-day trial in October of 2004, a jury found petitioner
guilty of two counts of second-degree murder, a lesser
included offense of the counts charging first-degree murder.
The circuit court sentenced petitioner to two consecutive
forty-year terms of incarceration. In State v.
Foster, 221 W.Va. 629, 656 S.E.2d 74 (2007), this Court
affirmed petitioner's convictions and sentences.
August 6, 2008, petitioner, pro se, filed a petition for writ
of habeas corpus. Thereafter, petitioner was appointed
counsel who filed an amended petition on July 1, 2012.
Various grounds for habeas relief were advanced, including
ineffective assistance of trial counsel. The circuit court
held an omnibus hearing on September 12, 2013, and continued
on October 18, 2013. During that hearing, petitioner's
habeas attorney presented seven witnesses, including
petitioner, an expert on criminal law, and petitioner's
trial attorney. Habeas counsel questioned petitioner's
trial attorney regarding the extent that his alcoholism
impacted his performance at petitioner's trial.
the omnibus hearing, the circuit court denied habeas relief
by order entered September 10, 2014. The circuit court found
a single possible instance of ineffective assistance of
counsel-the possibility that petitioner's trial attorney
did not advise petitioner of the State's initial plea
offer. The circuit court stated that, even if it assumed that
trial counsel failed to communicate this plea offer, it
questioned the truthfulness of petitioner's testimony
that he would have taken that initial plea offer had he been
aware of it given his rejection of a subsequent and
unquestionably more advantageous plea offer on the first day
of trial. Accordingly, the circuit court ruled that
petitioner failed to meet the second prong of the applicable
standard for establishing ineffective assistance of counsel,
which required him to prove that a reasonable probability
existed that, but for counsel's unprofessional errors,
the result of the proceedings would have been
circuit court further found that, though petitioner argued in
his initial pro se petition that trial counsel failed to
object to "allegedly improper statements" made by
the prosecuting attorney, that issue did not need to be
addressed as it had not been "supported by any argument
or evidence." Petitioner appealed the circuit
court's September 10, 2014, order in Foster v.
Ballard, No. 14-1023, 2015 WL 6756866 (W.Va. November 4,
2015) (memorandum decision). This Court affirmed the denial
of habeas relief, finding that, based a review of the record,
petitioner's trial attorney "performed
reasonably." Id. at *10 (footnote omitted).
January 26, 2017, petitioner, pro se, filed the instant
habeas petition. As the sole ground for relief, petitioner
argued that his habeas attorney failed to raise trial
counsel's failure to object to numerous instances when
the prosecutor allegedly misstated the evidence during the
State's closing argument. By order entered May 12, 2017,
the circuit court noted that petitioner was "zealously
represented" during the first habeas proceeding and
found that the additional claim that habeas counsel allegedly
inadequately raised had been adjudicated and/or waived in
that earlier proceeding.
now appeals the circuit court's May 12, 2017, order
denying the instant habeas petition. We apply the following
standard of review in habeas appeals:
"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." Syl. Pt. 1, Mathena v.
Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787
S.E.2d 864 (2016). In syllabus point 4 of Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held
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 ...