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Wisotzkey v. Terry

Supreme Court of West Virginia

April 9, 2018

Roy Wisotzkey, Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Center, Respondent Below, Respondent

          Berkeley 17-C-348

          MEMORANDUM DECISION

         Petitioner Roy Wisotzkey, appearing pro se, appeals the August 15, 2017, order of the Circuit Court of Berkeley County denying his petition for writ of habeas corpus. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Center, by counsel Shannon Frederick Kiser, filed a summary response in support of the circuit court's order.[1] Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying habeas relief.

         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.

         Following a jury trial in August of 2013, petitioner was convicted of felony murder, first-degree robbery, conspiracy, and burglary. Petitioner was sentenced to life imprisonment, with parole eligibility for felony murder; fifty years of incarceration for first-degree robbery; not less than one nor more than five years for conspiracy; and not less than one nor more than fifteen years for burglary. The felony murder and robbery sentences were ordered to run consecutively to each other and concurrently to the sentences for conspiracy and burglary. Petitioner appealed his conviction and this Court affirmed the trial court's rulings. See State v. Wisotzkey, No. 13-1240, 2014 WL 6607462 (W.Va. Nov. 21, 2014)(memorandum decision).

         In May of 2016, petitioner filed a pro se petition for writ of habeas corpus. The circuit court appointed habeas counsel and permitted counsel to file an amended petition. Counsel filed the amended petition and a Losh[2] list alleging thirteen assignments of error. Thereafter, the circuit court summarily dismissed the amended petition. Petitioner did not appeal that decision.

         In July of 2017, petitioner filed a second petition for writ of habeas corpus alleging ineffective assistance of habeas counsel. The circuit court found that the record was adequately detailed to proceed without a hearing on the petition. Ultimately, the circuit court found that petitioner was not entitled to relief and denied the petition without further proceedings by its August 15, 2017 order. Petitioner appeals from 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).

         On appeal, petitioner argues that the circuit court erred by denying his second petition for writ of habeas corpus based on the alleged ineffective assistance of petitioner's first habeas counsel. Petitioner asserts that the circuit court erred in (1) concluding that habeas counsel was adequately prepared for the first habeas proceeding; (2) concluding that petitioner offered no evidence establishing how habeas counsel's performance was deficient; and (3) increasing the burden of proof by requiring petitioner to show what evidence would have been discovered, but for petitioner's ineffective counsel. Respondent argues that petitioner fails to prove that his habeas counsel rendered ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the appeal should be denied. We agree with respondent.

         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 counsel's unprofessional errors, the result of the proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Furthermore,

[i]n reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a ...

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