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Clark v. Ames

Supreme Court of West Virginia

April 15, 2019

Desmond Demetrius Clark, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

          Kanawha County 16-P-219


         Petitioner Desmond Demetrius Clark, by counsel Charles R. Hamilton, appeals the Circuit Court of Kanawha County's February 9, 2018, order denying his second petition for writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional Complex, [1] by counsel Elizabeth Davis Grant, submitted a response to which petitioner submitted a reply.

         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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In 2008, petitioner was indicted by the Kanawha County Grand Jury and charged with breaking and entering, kidnapping, and murder, stemming from the murder of Na'lisha Gravely in a Taco Bell restaurant in Charleston, West Virginia. According to the circuit court's order in this habeas matter, the surveillance video from the restaurant positively identified petitioner as the murderer. Petitioner was found hiding in a utility closet in a home in Kanawha County and was arrested several hours after the killing. The State offered a plea agreement whereby petitioner would plead guilty to first-degree murder, with the parties free to argue mercy at sentencing, and the other charges would be dismissed. The plea agreement was placed on the record on March 30, 2009. During that hearing, petitioner's lead trial counsel, Theresa R. Chisolm, requested an opportunity for both of petitioner's trial attorneys and petitioner's mother to meet with petitioner, and the judge indicated his willingness to take as much time as needed for petitioner "and counsel to communicate and understand . . ." to ensure that petitioner understood what he was doing and that his plea was done freely, voluntarily, and intelligently. The hearing was continued and petitioner was afforded the opportunity to speak with his mother and his attorneys. The hearing resumed approximately four hours later, at which time the circuit court questioned petitioner, establishing that he was twenty-two years of age and had never been diagnosed with a mental illness. When the court pointed out that counsel had indicated that petitioner might have a mental defense to the crime, counsel clarified that petitioner had been diagnosed with ADHD and a provisional diagnosis of intermittent explosive disorder. Counsel stated that it was petitioner's desire not to pursue a mental defense but to accept responsibility for his crime. Petitioner also indicated that he understood the plea agreement and that no one promised him anything or threatened him to induce his agreement to the plea. Further, he stated that the medication provided to him by the jail did not affect his ability to think clearly. He confirmed that he understood the charge to which he was pleading guilty, that he could spend the rest of his life in prison, and that the State did not agree to any recommendation regarding sentencing. The court accepted petitioner's guilty plea, and a presentence investigation report was completed.

         Dr. Bobby Miller evaluated petitioner to determine competency, criminal responsibility, and any psychiatric diagnoses; he found petitioner to be competent. Dr. Miller believed that petitioner had intermittent explosive disorder, but that at the time he killed Ms. Gravely petitioner knew what he was doing. Dr. Miller found petitioner to be criminally responsible because he appreciated the wrongfulness of his actions and was capable of conforming his behavior to the requirements of the law but chose not to do so. On July 7, 2009, petitioner was sentenced to life in prison without the possibility of parole. On November 2, 2009, he filed a motion to reconsider his sentence, but that motion was denied by order entered November 10, 2009.

         Petitioner filed his first petition for writ of habeas corpus on October 11, 2011, and he was afforded an omnibus hearing with the assistance of counsel. In that petition, petitioner asserted ineffective assistance of counsel because counsel failed to investigate mental and medical defenses known at the time of sentencing and ineffective assistance of counsel due to mitigating evidence of Xanax and alcohol use at the time of the offense that was not offered at sentencing. Petitioner and his mother testified at the evidentiary hearing, with petitioner testifying that he had little recall as to what happened due to voluntary intoxication. He stated that his lawyers never talked about a defense but suggested that he would receive mercy. Petitioner acknowledged that he knew about his lack of memory when he entered his plea and that he was truthful with his lawyers in all respects. He also acknowledged he thought that he had a mental defense because of diminished capacity, shared all the information with counsel, and knew that at the time he entered the plea. Petitioner's mother testified that trial counsel did not guarantee mercy but gave advice as to what they thought the outcome would be. She admitted that her son made his own decision about entering the plea. The circuit court determined that petitioner had failed to demonstrate that his counsel was ineffective and dismissed the petition by order entered April 12, 2012. That decision was appealed to this Court and affirmed in a memorandum decision. Clark v. Ballard, Case No. 12-0524, 2013 WL 2462188 ( W.Va. June 7, 2013) (memorandum decision) ("Clark I").

         Petitioner filed a second petition for writ of habeas corpus in the circuit court in May of 2016. The second petition alleged the following: ineffective assistance of habeas counsel, ineffective assistance of trial counsel, prejudicial pre-trial publicity, involuntary guilty plea, petitioner's competence and criminal responsibility or lack thereof, the failure of trial counsel to appeal petitioner's sentence, the State's use of perjured testimony, the failure to grant a continuance, the refusal to subpoena witnesses, question of actual guilt upon an acceptable guilty plea, more severe sentence than expected, and mistaken advice as to eligibility for probation or parole. Following the second omnibus evidentiary hearing, the circuit court entered its February 9, 2018, final order, finding that because this was a successive petition, the only available issues to be raised are newly discovered evidence, change in the law that is favorable to petitioner and may be retroactively applied, and ineffective assistance of the prior habeas counsel.

         Sherman Lambert, petitioner's attorney during his first habeas proceeding, testified that he discussed filing a request to file an appeal out of time for petitioner. He explained that in preparation for filing a petition for writ of habeas corpus, he had numerous visits with petitioner, obtained psychiatric records, and obtained petitioner's file from trial counsel. Mr. Lambert also consulted with a mental health expert witness. He testified that while he raised ineffective assistance of trial counsel in not pursuing certain mental and medical defenses and in failing to offer mitigating evidence of the use of drugs and alcohol at the time of the offense, he did not see other viable issues. Mr. Lambert testified that he discussed every potential ground in the Losh list with petitioner and informed him that anything he did not raise would be forever waived.[2]According to Mr. Lambert, he chose not to raise the issue of involuntary plea because a review of the plea colloquy regarding any question that petitioner believed he had been promised mercy revealed that petitioner clearly acknowledged that the judge had the discretion to sentence him to life in prison. He testified that, as a matter of strategy, he proffered the two issues in the petition for writ of habeas corpus because all other plausible issues were waived by the entry of the guilty plea. Mr. Lambert testified that he chose not to communicate with trial counsel because he believed the documents he had were sufficient. He also testified he determined that petitioner had reported things his previous lawyers had said and done that were inaccurate and untrue.

         After considering the second petition for writ of habeas corpus and the testimony of petitioner's first habeas counsel, the circuit court found that it was Mr. Lambert's strategic decision not to communicate with trial counsel or seek their testimony at the initial omnibus hearing. Attorney Shawn Bayliss testified as an expert witness at the second omnibus hearing and opined that he understood the strategy employed by Mr. Lambert but that he did not believe that strategy was objectively reasonable. However, he noted that the plea colloquy makes the plea appear freely and voluntarily given. While Mr. Bayliss acknowledged that often trial counsel do not testify in habeas proceedings, he continued to be critical of Mr. Lambert's lack of investigation into the actions of trial counsel. In its final order, the circuit court found that practitioners may make different choices in representing a habeas petitioner but that a disagreement about those choices does not necessarily make the assistance ineffective. It specifically noted that "strategic decisions rarely, if ever, form the basis for relief in habeas corpus."

         In addressing applicable law, the circuit court concluded that the issues to be raised in successive petitions for writs of habeas corpus are very limited, reiterating the three categories set forth above. It, therefore, found that only ineffective assistance of prior habeas counsel was properly before it. After a detailed examination of the various standards related to the ineffective assistance of counsel, the circuit court concluded that previous habeas counsel was not ineffective because petitioner failed to satisfy the standard set forth in Strickland/Miller.[3] The circuit court then found that petitioner's other claims are barred by res judicata. Petitioner appeals from that order.

We review the circuit court's denial of petitioner's second habeas petition as follows:
"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 asserts two assignments of error. First, he alleges that the circuit court clearly erred by sustaining the State's objection to the testimony of petitioner's trial counsel and witnesses at petitioner's omnibus hearing. In support of his argument, petitioner contends that when the circuit court sustained the State's objection to testimony from trial counsel Robert Catlett, petitioner was prevented from proving that trial counsel acted incompetently, that the incompetency related to a matter that would have substantially affected the fact-finding process if the case had ...

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