Yasser Abdelhaq, by counsel Kevin L. Neiswonger, appeals the
Circuit Court of Ohio County's December 29, 2016, order
denying his petition for writ of habeas corpus. Respondent
Ralph Terry, Superintendent, Mt. Olive Correctional
Complex, by counsel Gordon L. Mowen II, filed a response in
support of the circuit court's order. On appeal,
petitioner argues that the circuit court erred in denying
habeas relief because he received ineffective assistance of
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.
January of 2000, petitioner was indicted on one count of
first-degree murder for the stabbing death of Dana Tozar
("the victim"). Following an August of 2000 jury
trial, petitioner was convicted of first-degree murder and
sentenced to a term of incarceration of life, without mercy.
Petitioner appealed his conviction, and this Court thereafter
vacated the conviction and remanded the matter for a new
trial. See State v. Abdelhaq, 214 W.Va. 269, 588
S.E.2d 647 (2003).
petitioner was indicted for a second time on one count of
first-degree murder and was represented by attorneys Robert
G. McCoid and John J. Pizzuti. During his bifurcated trial,
petitioner's defense was that he could not have
deliberately and intentionally killed the victim because he
was in a psychotic state due to drug use. As such, petitioner
sought a conviction on the lesser-included offense of
second-degree murder. At the conclusion of his second jury
trial, petitioner was again convicted of first-degree murder.
Ultimately, the jury did not recommend mercy, and petitioner
was sentenced to a term of incarceration of life, without
mercy. Following this conviction, petitioner's second
appeal to this Court was refused by order entered in May of
2006, petitioner initiated habeas corpus proceedings.
Following a summary denial of his petition for writ of habeas
corpus, this Court granted petitioner relief and ordered the
matter remanded for the holding of an omnibus hearing on the
limited issue of ineffective assistance of trial counsel.
August of 2016, the circuit court held an omnibus hearing.
During the hearing, Mr. McCoid testified extensively to the
trial strategy and tactics employed, as well as to specific
instances wherein he opted not to object to certain
statements from the prosecution that petitioner alleged
constituted prosecutorial misconduct. Mr. McCoid further
testified unequivocally that petitioner understood "the
full ramifications" of the trial strategy to admit guilt
and ask for a conviction of second-degree murder and gave his
consent. At several points during his testimony, Mr. McCoid
addressed discussions the attorneys had with petitioner
concerning the trial strategy, petitioner's understanding
of the risks and benefits of such a strategy, and his consent
to pursuing it. Having the benefit of seeing the State's
theory of the case during the first trial, Mr. McCoid
testified that they reevaluated the trial strategy since this
"was not a case about whether [petitioner] had taken
[the victim's] life," but was rather "about
what his mental status was at the time that he did so."
Mr. McCoid cited to portions of his opening statement in the
case where he admitted that petitioner's guilt was not in
question but urged the jury to convict him of second-degree
murder due to the absence of premeditation. Based on the
opening, Mr. McCoid indicated that
[i]t is inconceivable that I would have given an opening
statement in a first-degree murder case asking the jury to
convict my client of second-degree murder without hav[ing]
closely consulted with my client, discussed the minutia
associated with that decision and obtained the full consent
of my client in . . . advancing that defense.
petitioner testified and admitted to killing the victim by
stabbing her 235 times. He further agreed that he would have
been "thrilled" with a verdict of life, with mercy,
or second-degree murder. Petitioner testified that he did not
agree with the strategy to ask for a conviction of
second-degree murder, however. And while he was willing to
take responsibility for the victim's murder, petitioner
indicated the he "did not premediate" the act.
Ultimately, by order entered on December 29, 2016, the
circuit court denied petitioner habeas relief. It is from
this order that petitioner appeals.
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).
appeal, petitioner asserts three assignments of error, all of
which involve allegations of ineffective assistance of trial
counsel. First, petitioner argues that counsel failed to
object to the following three instances of prosecutorial
misconduct: (1) the prosecuting attorney's misstatement
of the law concerning premeditation, wherein the prosecutor
told the jury "don't forget the instructions. How
long does it take to premeditate and deliberate? An
instant"; (2) the prosecutor's personal opinion
regarding the credibility of an expert witness; and (3) the
prosecutor's inappropriate mention of mercy, including an
instance wherein the prosecutor said that
"[petitioner's] mercy is that he gets to live.
People worked to save his life at that hospital. He gets to
live, and [the victim] is dead." Second, petitioner
argues that counsel was ineffective for failing to object to
what he alleges was an improper jury instruction on the
inference of malice and the intent to kill. Finally,
petitioner alleges that counsel was ineffective for failing
to obtain his consent to pursue a defense strategy of
admitting culpability but challenging the requisite intent to
support a first-degree murder conviction. However, our review
of the record supports the circuit court's decision to
deny petitioner's petition for writ of habeas corpus as
to each of petitioner's assignments of error.
Petitioner's arguments presented herein, with the
exception of his assertion that the circuit court failed to
substantively address his third assignment of error, were
thoroughly addressed by the circuit court in its order
denying petitioner habeas relief.
petitioner's third assignment of error asserting that his
counsel was ineffective for pursuing a trial strategy to
which he did not ...