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Palmer v. Mutter

Supreme Court of West Virginia

November 21, 2018

Christopher L. Palmer, Petitioner Below, Petitioner
v.
R.S. Mutter, Superintendent, McDowell County Corrections, Respondent Below, Respondent

          Fayette County 17-C-38

          MEMORANDUM DECISION

         Petitioner Christopher L. Palmer, by counsel Jason D. Parmer, appeals the Circuit Court of Fayette County's March 28, 2017, order denying his petition for a writ of habeas corpus.[1]Respondent R.S. Mutter, Superintendent, by counsel Julianne Wisman, filed a response. On appeal, petitioner argues that the circuit court erred in denying his ineffective assistance of counsel claim without making specific findings of fact and due to his failure to plead adequate facts.

         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.

         On April 22, 2014, petitioner, who was a passenger in a vehicle driven by Marvin White, entered onto Betty Puckett's driveway, exited the vehicle, and proceeded into Ms. Puckett's home. Ms. Puckett happened to be home and, upon seeing petitioner, whom she did not know, directed him to leave. Petitioner complied. Ms. Puckett examined her door and noticed that tools had apparently been used to pry it open. Ms. Puckett subsequently alerted law enforcement, and during their investigation, a flathead screwdriver and pry bar were recovered from the passenger side floorboard of Mr. White's vehicle.

         On September 9, 2014, petitioner was indicted on one count of conspiracy to commit a felony and one count of burglary. Petitioner's trial on these charges commenced on November 20, 2014, and on that same day, the jury found him guilty of the two counts charged in the indictment. Shortly thereafter, on November 24, 2014, the State filed an information under West Virginia Code §§ 61-11-18 and -19 alleging that petitioner was twice before convicted of a felony offense.[2] Petitioner entered into an agreement with the State whereby he admitted to being previously convicted of one felony offense in exchange for the State's agreement to not seek a recidivist life sentence.

         On July 24, 2015, the petitioner and the State appeared for sentencing. The circuit court sentenced petitioner to not less than one nor more than five years of incarceration for his conspiracy to commit a felony conviction and to not less than two nor more than fifteen years of incarceration for his burglary conviction, which was enhanced under West Virginia Code § 61-11-18 as though petitioner had only once before been convicted of a felony, in accordance with the parties' agreement. The court further ordered these sentences to run consecutively to one another and consecutively to a sentence petitioner was then serving for a Summers County, West Virginia conviction. We affirmed petitioner's convictions and sentences in State v. Palmer, No. 15-0858, 2016 WL 4611221 (W.Va. Sept. 6, 2016)(memorandum decision).

         On February 8, 2017, petitioner filed a pro se petition for a writ of habeas corpus. Relevant to the instant appeal, petitioner alleged that he received ineffective assistance of trial counsel due to trial counsel's failure to investigate or interview the State's witnesses, to object to evidence the State used at trial concerning the tools recovered, to interview his "crucial witness," to object to the court's requirement that petitioner wear a stun belt during trial, to object to the photo lineup shown to the victim, to hire experts to dispute the State's evidence, to object to "discovery violations" by the State, to object to false testimony given to the grand jury, and because counsel "let [the] State and court file [a recidivist] information."

         Without appointing counsel or holding a hearing, the circuit court denied petitioner's habeas petition. In its order, the court addressed collectively petitioner's contentions that trial counsel failed to investigate or interview the State's witnesses, failed to object to the tool evidence, failed to interview crucial witnesses, failed to hire an expert, failed to object to "discovery violations," failed to object to testimony before the grand jury, and failed to object to the use of a photo lineup. The court found that dismissal of these claims was warranted because petitioner

provide[d] no factual support, explanation, argument, examples, or references to the record, which would even remotely support the foregoing seven (7) claims and accordingly warrant the appointment of counsel or a hearing in the matter. Beyond mere assertions, the [p]etitioner has provided this [c]ourt with nothing to support these random allegations.

         In sum, the court found that these claims amounted to "nothing more than innuendo, speculation, and blank, unsupported assertions that do not warrant further review."

         Additionally, in regard to petitioner's claim that trial counsel rendered deficient assistance due to his failure to object to the State's use of a photo lineup, the court noted that "[a] thorough review of the record in the underlying matter reveals that [t]rial [c]ounsel actually did challenge the admissibility of the photo lineup." The circuit court also noted that we found no error in the trial court's ruling that the photographic lineup was admissible. Palmer, 2016 WL 4611221, *4.

         With respect to petitioner's assertion that trial counsel rendered ineffective assistance due to his failure to object to the court's requirement that he wear a stun belt during trial, the court noted that it was within its discretion to require him to wear a stun belt. Moreover, the court directed that the belt be worn under petitioner's clothing, so it was not visible to the jury and, therefore, did not create the impression that he was a dangerous individual. Accordingly, the court found that counsel did not render ineffective assistance of counsel for not objecting and that petitioner suffered no prejudice.

         Finally, in addressing petitioner's claim that trial counsel "let" the State and the court file a recidivist information, the court noted that West Virginia Code § 61-11-19 places the duty of filing a recidivist information on the prosecuting attorney, not a defendant's attorney or the circuit court. More importantly, though, trial counsel moved to dismiss the recidivist information and, upon the trial court's denial of that motion, filed a petition for a writ of prohibition with this Court to prevent the circuit court from proceeding on the recidivist information. In other words, the circuit court found that trial counsel "took considerable action on behalf of the [p]etitioner to challenge and prevent the State from proceeding on the felony enhancement information and then, after all challenges failed, secured the [p]etitioner a very reasonable plea deal to avoid the [p]etitioner receiving a potential life sentence."

         The court entered its order denying and dismissing petitioner's habeas petition on March 28, 2017, and it is ...


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