(Kanawha County 13-P-415)
Brandon Sherrod, pro se, appeals the July 31, 2017, order of
the Circuit Court of Kanawha County denying his petition for
a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mount Olive Correctional
Complex, by counsel Benjamin F. Yancey, III, filed
a response in support of the circuit court's order.
Petitioner filed a reply.
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.
case arises out of the shooting death of James Williams,
("the victim"). The victim was shot through his
kitchen window. Trial testimony showed that petitioner and
his co-defendant were driven to the home where the victim was
located, and the two then stood outside the kitchen window.
When the victim entered the kitchen, petitioner and his
co-defendant shot through the window. The co-defendant
testified that he was only attempting to scare the victim,
but that petitioner was deliberately aiming at the victim.
The driver of the vehicle testified that, after petitioner
and his co-defendant returned, petitioner noted that he had
shot the victim and later laughed about it. The jury returned
a verdict finding petitioner guilty of first-degree murder
with a recommendation of mercy. Accordingly, the circuit
court sentenced petitioner to a life term of incarceration
with the possibility of parole.
State v. Sherrod ("Sherrod I"),
No. 11-1121, 2012 WL 5857302, at *l-2 (W.Va. November 19,
2012) (memorandum decision), petitioner appealed from his
conviction, alleging that insufficient evidence existed to
establish the element of premeditation to commit murder and
that the circuit court erred in refusing to grant a mistrial
following the improper testimony of a witness. This Court
rejected the assignments of error and affirmed
petitioner's conviction. Id. In rejecting
petitioner's insufficiency of the evidence argument, the
Court determined that a rational trier of fact could have
reasonably found that (1) petitioner's friend put a
"hit" on the victim; (2) petitioner brought a gun
to the scene; (3) petitioner later noted that he had shot the
victim and laughed about it; and, therefore, (4) petitioner
planned the murder. Id.
2013, petitioner filed two petitions for a writ of habeas
corpus which the circuit court dismissed by separate orders
entered August 23, 2013, and February 5, 2014. In Sherrod
v. Ballard ("Sherrod II"), Nos.
13-1141 and 14-0232, 2014 WL 4662484, at *4 (W.Va. September
19, 2014) (memorandum decision), this Court affirmed the
dismissal of the first habeas petition, but reversed the
dismissal of the second petition. The Court remanded
petitioner's case to the circuit court for appointment of
counsel and a hearing on his claim of ineffective assistance
of counsel. Id. Accordingly, the circuit court
appointed an attorney to represent petitioner, who filed an
amended habeas petition on petitioner's behalf. At a May
18, 2017, evidentiary hearing, petitioner presented the
testimony of his trial attorney and an expert regarding
ineffective assistance of counsel. On July 31, 2017, the
circuit court entered a comprehensive order denying
petitioner's amended petition.
now appeals the circuit court's July 31, 2017, order
denying habeas relief. 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, of Anstey v. Ballard, 237 W.Va. 411, 787
S.E.2d 864 (2016).
appeal, petitioner asks this Court to address two claims
"that were not raised in the circuit
court." Respondent counters that we should decline
to address those claims. We agree with respondent. Though
petitioner argues that this Court has original jurisdiction
to hear habeas claims, we note that this case arises under
our appellate jurisdiction. Therefore, we decline to address
issues not raised below because "[t]his Court will not
pass on a non[-]jurisdictional question which has not been
decided by the trial court in the first instance."
Watts v. Ballard, 238 W.Va. 730, 735 n.7, 798 S.E.2d
856, 861 n.7 (2017) (quoting Syl. Pt. 2, Sands v. Sec.
Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)).
reviewed the July 31, 2017, "Findings of Fact,
Conclusions of Law[, ] and Final Order," we hereby adopt
and incorporate the circuit court's well-reasoned
findings and conclusions as to all of the remaining
assignments of error raised in this appeal. Therefore, we
conclude that the circuit court did not abuse its discretion
in denying petitioner's habeas petition. The Clerk is
directed to attach a copy of the circuit court's order to
this memorandum decision.
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker, Justice
Margaret L. Workman, Justice Tim Armstead, Justice Evan ...