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Dunlap v. Terry

Supreme Court of West Virginia

April 9, 2018

Vernon H. Dunlap, Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Jefferson County CC-19-2010-C-377

          MEMORANDUM DECISION

         Petitioner Vernon H. Dunlap, by counsel Christian J. Riddel, appeals the December 30, 2016, order of the Circuit Court of Jefferson County denying his second amended petition for post-conviction habeas corpus relief. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Scott E. Johnson, filed a response in support of the circuit court's order.[1] On appeal, petitioner argues that the circuit court erred in finding that his first habeas counsel's investigation was appropriate as a strategy choice.

         The 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 the underlying criminal action, petitioner was indicted in September of 2005 for the first-degree murder of Jennifer Dodson. Ms. Dodson's body was found face down in a pool of blood in her home. Petitioner was Ms. Dodson's boyfriend and was last seen inside Ms. Dodson's apartment the night she was murdered. Petitioner was found unconscious in his truck that same night. When found, petitioner had two large knives in his possession, however, neither the knives nor petitioner were soiled with blood. At trial, four witnesses testified that petitioner confessed to them that he committed the murder. Petitioner's trial counsel asserted that the police arrested the wrong person and that no physical evidence linked petitioner to the crime. Ultimately, petitioner was convicted of first-degree murder, without mercy. Petitioner was sentenced to life imprisonment without the possibility of parole. Petitioner appealed his conviction and this Court denied his appeal.

         Petitioner filed his habeas petition pro se in 2006. Appointed counsel filed an amended petition alleging ineffective assistance of trial counsel, improper bifurcation of guilt and mercy phases, and the admission of inadmissible evidence. In April of 2008, petitioner and his trial counsel testified at an omnibus hearing. In October of 2008, petitioner's petition for habeas corpus (hereinafter "first petition") was denied. Petitioner appealed that denial and this Court affirmed the habeas court's order. See State ex rel. Dunlap v McBride, 225 W.Va. 192, 691 S.E.2d 183 (2010).

         Thereafter, petitioner filed a second petition for writ of habeas corpus in the Circuit Court of Jefferson County asserting ineffective assistance of habeas counsel. New appointed counsel filed an amended petition and a supporting memorandum of law. In a ten-page order entered on December 30, 2016, the circuit court denied the amended petition after finding that petitioner was entitled to no relief. With regard to the first habeas counsel's investigation, the circuit court found that "[first habeas counsel]'s conduct arose from decisions involving strategy, tactics and arguable courses of action" and that "because other reasonable lawyers, similarly situated, would have acted in a like manner to prior habeas counsel, the petitioner fails to meet his burden of proof, and is not entitled to habeas corpus relief" on the second habeas petition. Petitioner now appeals that order.

         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, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

         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 argues that the circuit court erred in finding petitioner's first habeas counsel's assistance was reasonable because counsel's level of investigation was the result of a permissible strategic choice. Specifically, petitioner asserts that his first habeas counsel did not investigate or subpoena one of the witnesses to petitioner's confessions and that habeas counsel did not investigate the alibi of a potential suspect. Petitioner argues that strategic choices by counsel cannot be made without a thorough investigation.

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


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