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Allen v. Terry

Supreme Court of West Virginia

May 14, 2018

Darnell A. Allen, Jr., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Mineral County 06-C-118

          MEMORANDUM DECISION

         Petitioner Darnell A. Allen Jr., by counsel J. Brent Easton, appeals the Circuit Court of Mineral County's November 1, 2016, order denying his second petition for writ of habeas corpus following his conviction by a jury of first-degree murder. Ralph Terry, Acting Warden, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order.[1] On appeal, petitioner argues that the circuit court erred in denying him habeas relief because of certain issues raised by the serology evidence at trial and that he was denied due process by the circuit court's failure to timely hear his petition.

         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.

         In August of 1995, petitioner was convicted by a jury in the Circuit Court of Mineral County of the first-degree murder of Arthur Samuel Smith Jr., who was beaten to death with a blunt instrument in the early morning hours of January 8, 1994, in Keyser, West Virginia.[2]Petitioner and his codefendant were identified as the perpetrators by a witness who, from the upstairs window of his apartment, saw two black men in dark bulky coats striking something on the ground with a stick or club near a church. The witness called police who, when they arrived, discovered the victim's body. Petitioner and his codefendant were spotted in the area near the crime scene and were picked up by police because they matched the eyewitness's description of the suspects.

         Police tested articles of clothing that petitioner and his codefendant wore that night. Trooper H.B. Myers of the West Virginia State Police conducted serological testing on a piece of flesh that was found on petitioner's baseball cap and found that it had the same genotype as the victim. Serological testing by Trooper Myers on the codefendant's jeans was inconclusive, but Brian Wraxall of the Serological Research Institute in California identified Polymerase Chain Reaction ("PCR") markers that were consistent with the victim's DNA from blood found on the jeans and that occur in approximately one in 6.25 million persons in the Caucasian population.[3]

         Thereafter, petitioner's direct appeal was denied by this Court.[4] See n.2. In April of 1999, petitioner filed a petition for writ of habeas corpus. Following an omnibus evidentiary hearing, the circuit court denied the petition by order entered in February of 2004. Thereafter, petitioner petitioned for appeal, and this Court refused the same.

         In October of 2006, petitioner filed his second petition for writ of habeas corpus. Thereafter, the circuit court entered an order appointing counsel to "represent [petitioner] . . . on the limited issue of the evidence presented by Trooper Myers during the criminal trial . . . in accordance with Zain III." See In re Renewed Investigation of State Police Crime Laboratory, Serology Division ("Zain III"), 219 W.Va. 408, 633 S.E.2d 762 (2006).[5]

         Meanwhile, petitioner, along with his codefendant, filed a joint motion for DNA testing of the codefendant's boots or pants and petitioner's cap, pursuant to West Virginia Code § 15-28-14. They argued that an independent DNA test had never been conducted in this case; that there was possible contamination of the serological evidence when it was done in 1994; that testing procedures may not have been appropriately followed when the testing was done; that Trooper Myers is alleged to have provided false serology evidence in another, unrelated criminal case; and that DNA testing is relevant to their claims that they are innocent of the crime for which they were convicted. The State filed a response opposing the request for DNA testing.

         A hearing was conducted in August of 2016, approximately ten years after petitioner filed his second request for habeas relief. Trooper Myers was the only witness. By order entered November 1, 2016, the circuit court denied petitioner's request for habeas relief and for DNA testing. This appeal followed.

         Our review of the circuit court's order denying petitioner's petition for a writ of habeas corpus is governed by 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).

         In his first assignment of error, petitioner argues that the circuit court erred in failing to grant him habeas relief. He contends that he presented evidence that Trooper Myers has a history of intentional misrepresentation of serology test results and methods and that he was entitled to a new trial. In syllabus point four of Zain III, this Court held as follows:

A prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence and who challenges his or her conviction based on the serology evidence is to be granted a full habeas corpus hearing on the issue of the serology evidence. The prisoner is to be represented by counsel unless he or she knowingly and intelligently waives that right. The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny. At the close of the evidence, the circuit court is to draft a comprehensive order which includes detailed findings as to the truth or falsity of the serology evidence and if the evidence is found to be ...

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