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Mills v. Ames

Supreme Court of West Virginia

April 15, 2019

Marvin Mills, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

          Raleigh County 06-C-784

          MEMORANDUM DECISION

         Petitioner Marvin Mills, by counsel Stephen P. New, appeals the January 25, 2018, order of the Circuit Court of Raleigh County that denied his petition for a writ of habeas corpus following his conviction of first-degree murder with use of a firearm. Donnie Ames, Superintendent, Mount Olive Correctional Complex, [1] by counsel Robert L. Hogan, filed a response in support of the circuit court's order.

         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 September 1999, petitioner drove to Richmond Cleaners in Beckley, West Virginia, stepped inside, removed his .38 caliber gun from the manila envelope he was carrying, [2] and shot Pamela Cabe two times, causing her death. Petitioner then crossed the street, tossed his handgun nearby, and waited for the police. The police recovered the handgun with petitioner's help and took him into custody. Petitioner confessed to the murder.[3]

         In May 2000, petitioner was tried before a jury in the Circuit Court of Raleigh County on the charge of first-degree murder. Given the overwhelming evidence that he shot the victim, petitioner did not dispute this fact at trial. He was convicted of first-degree murder by use of a firearm and was sentenced to life in prison without the recommendation of mercy. Petitioner appealed and this Court reversed his conviction and remanded the matter for a new trial. See State v. Mills, 211 W.Va. 532, 566 S.E.2d 891 (2002) ("Mills I") (finding reversible error in the trial court's failure to grant a motion to strike a prospective juror for cause and the prosecutor's improper references to petitioner's decision not to testify).

         In November 2003, following a second jury trial, petitioner was again convicted of first-degree murder by use of a firearm and was sentenced to life without mercy. Petitioner appealed and this Court affirmed his conviction. See State v. Mills, 219 W.Va. 28');">219 W.Va. 28, 631 S.E.2d 586 (2005) ("Mills II").

         Petitioner filed a pro se petition for a writ of habeas corpus in 2006. Various appointed counsel came and went and petitioner's present counsel was appointed in May 2011. On June 26, 2013, petitioner, by counsel, filed an extensive amended habeas petition.

         Following a July 15, 2014, hearing, the habeas court entered a detailed thirty-page order denying relief, specifically acknowledging that, at the habeas hearing, petitioner adopted a strategy that he had not previously employed in either of his trials, appeals, or early on in his request for habeas relief: actual innocence. The habeas court rejected any claim that this "new 'contention in fact'" constituted "new evidence" warranting habeas relief because petitioner had the opportunity to make such claim in both trials, in his two appeals, and in his earlier post-conviction pleadings.

         The habeas court further found that the following grounds for relief alleged in the amended petition were previously and finally adjudicated in petitioner's appeal of his conviction following the second trial: violation of the right to confront witnesses; prosecutorial misconduct (as to the prosecutor's closing argument); failure to strike jurors; improper media involvement; and media coverage of the jury view of the crime scene. See generally Mills II, 219 W.Va. 28, 631 S.E.2d 586; W.Va. Code § 53-4A-1. As for the other grounds alleged (with the exception of the ineffective assistance of counsel claim), the habeas court concluded that petitioner failed to rebut the presumption that he intelligently and knowingly failed to advance certain issues that could have been raised prior to or during trial or on direct appeal-i.e., "911 Recordings"; "Failure [to] preserve audiotape recorded statements"; prosecutorial misconduct; prior acts of prosecutorial misconduct involving conduct other than the prosecutor's closing argument; prosecutor acted as an "over[-]zealous advocate"; violation of Trial Court Rule 17 by the circuit judges; appearance of bias by "[t]he 10th Judicial Circuit"; failure to bifurcate trial and sentencing; failure to bifurcate on the issue of eligibility for probation; and "[f]ruit of the [p]oisonous [t]ree-[n]o Miranda warning/coercion to give 'voluntary statement.'" See generally Mills II, 219 W.Va. 28');">219 W.Va. 28, 631 S.E.2d 586; W.Va. Code § 53-4A-1.

         Thus, the remaining issue before the habeas court was whether petitioner received ineffective assistance of trial counsel on the following grounds: (1) failure to question or move to suppress petitioner's statement, which petitioner now claims was coerced; (2) "[d]efense counsel pled petitioner guilty[;]" (3) failure to dispute the State's claim that petitioner planned a "sneak attack" on the victim; (4) failure to investigate eyewitness's claim; (5) failure to impeach witness's inconsistent statements; (6) failure to investigate and clarify firearm examiner testimony; (7) failure to challenge the gun-residue kit; and (8) failure to move for mistrial or file pretrial motions regarding missing evidence.

         The habeas court addressed and rejected each of petitioner's ineffective assistance arguments. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) ("In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different."). This appeal followed.

         This Court reviews orders denying habeas relief under 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, in part, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

         In petitioner's first assignment of error, he argues that the habeas court incorrectly concluded that trial counsel was not ineffective. Petitioner argues, as he did below, that trial counsel was ineffective in failing to question law enforcement about the circumstances surrounding his confession, which petitioner now claims was coerced and should have been suppressed. The habeas court found that, at the suppression hearing (at which petitioner refused to testify) and in his two appeals from his convictions, [4] he never claimed that his confession was coerced or, as he now contends, that he requested a lawyer three times before making his statement.[5] Petitioner does not challenge these findings in this appeal. Further, trial counsel testified that petitioner never advised him of the alleged circumstances surrounding his confession. Rather, the evidence showed that petitioner twice confirmed that he understood his Miranda[6] rights before giving his confession and that he agreed in the recorded confession that his statement was not coerced. Petitioner fails to make any compelling argument on appeal that the habeas court abused its discretion in finding that trial counsel was not ineffective in failing to investigate the alleged circumstances surrounding petitioner's confession.

         Petitioner also argues, as he did below, that trial counsel was ineffective for conceding to the jury that petitioner killed the victim; failing to investigate an eyewitness's claim that the shooter appeared to be "black or Hispanic [be]cause he was dark skinned," which is a physical description that does not match petitioner's; failing to impeach the testimony of an eyewitness who, at the first trial, described the shooter as having a long beard and pony tail, but in the retrial, failed to mention a pony tail; failing to undermine the testimony of the State's firearm expert; and failing to re-test the gunshot residue found on petitioner's hand, which petitioner now claims could have been alternatively explained by the fact that, on the morning of the murder, he had used two different nail guns that "create[d] powder residue." We find no error. Despite petitioner's new theory of actual innocence, the evidence that he shot the victim was overwhelming. Thus, it is abundantly clear that trial counsel, in concert with petitioner, acted reasonably in conceding the same in order to focus defense efforts on persuading the jury to convict on a charge that was lesser than the indicted charge of first-degree murder and/or to recommend a sentence of mercy. The above arguments that petitioner claims support an ineffective assistance claim are wholly inconsistent with the well-founded defense strategy employed by trial counsel in both trials and in his appeals of those convictions. The habeas court did not err in concluding that trial counsel was not ineffective in this regard.

         Petitioner's remaining arguments in support of his claim that trial counsel was ineffective need not be addressed. First, petitioner argues that trial counsel failed to dispute the State's claim that petitioner planned a "sneak attack" on the victim and that the State improperly used "[s]neak attack rhetoric" "extensively" throughout its case-in-chief and during closing argument. Petitioner argues that trial counsel's failure to object to or "investigate" the State's claim amounted to ineffective assistance. Petitioner fails to include any citation to the record in support of this alleged error. Second, petitioner argues that trial counsel was also ineffective by failing to move for a mistrial or file pretrial motions regarding "missing" recordings of certain witness statements and unspecified 9-1-1 calls. Though petitioner summarily states that he was "greatly prejudiced by the failure of the State and his counsel to preserve this evidence in that witnesses could not be impeached at the second trial with their own words[, ]" he fails to provide any specific instances of prejudice with respect to witness testimony or otherwise cite to the record in support of this claim. Furthermore, petitioner fails to argue the legal standard under which a mistrial should have been granted, identify what motions should have been filed by trial counsel prior to trial, or explain what impact the recordings would have had on petitioner's defense at trial. In short, petitioner's arguments are inadequately briefed and we decline to address them. See W.Va. R. App. P. 10(c)(7) (providing that petitioner's brief "must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may disregard errors that are not adequately supported by specific references to the record on appeal." (Emphasis added)); Evans v. United Bank, Inc., 235 W.Va. 619, 629, 775 S.E.2d 500, 510 (2015) (observing that petitioners' argument failed to meet requirements of Rule 10(c)(7), and concluding, therefore, "the issue has been waived for purposes of appeal"); State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) (stating that "[a]lthough we liberally construe briefs in determining issues presented for review, issues . . . mentioned only in passing but are not supported with pertinent authority, are not considered on appeal."). See also State v. Allen, 208 W.Va. 144, 162, 539 S.E.2d 87, 105 (1999) (stating that "[i]n the absence of supporting authority, we decline further to review [these] alleged error[s] because [they have] not been adequately briefed.").

         Finally, petitioner raises seven other assignments of error, all of which were raised and correctly resolved by the habeas court in its January 30, 2018, order denying relief. The habeas court determined that the following alleged errors were waived because petitioner failed to raise them in either of his appeals from his convictions: prosecutorial misconduct relating to the improper suppression of 9-1-1 recordings and the alleged destruction of recorded statements of witnesses; the alleged violation of Trial Court Rule 17 by the judges of the Tenth Judicial Circuit; the trial court's failure to bifurcate the trial and sentencing phases; and the admission of gruesome photographs of the victim. See Syl. Pt. 2, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 191 (1972) ("In a habeas corpus proceeding under Chapter 53, Article 4A, Code of West Virginia, 1931, as amended, the burden of proof rests on petitioner to rebut the presumption that he intelligently and knowingly waived any contention or ground for relief which theretofore he could have advanced on direct appeal.").

         Similarly, the habeas court determined that the following alleged errors were previously and finally adjudicated in petitioner's appeal from his conviction[7]: prosecutorial conduct involving actions and remarks by the prosecuting attorney; alleged violation of petitioner's right to confront a witness; and whether "media involvement" during the jury view of the crime scene warranted an inquiry into whether the jury was prejudiced by the same. See Syl. Pt. 1, Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435 (1982) (" W.Va. Code, 53-4A-1(d) [1967] allows a petition for post-conviction habeas corpus relief to advance contentions or grounds which have been previously adjudicated only if those contentions or grounds are based upon subsequent court decisions which impose new substantive or procedural standards in criminal proceedings that are intended to be applied retroactively."). On appeal, petitioner fails to present any persuasive arguments that the habeas court abused its discretion in denying habeas relief on these grounds.

         Accordingly, upon careful review and consideration of the habeas court's order, the parties' arguments, and the record submitted on appeal, we find no error or abuse of discretion by the habeas court. Our review of the record supports the habeas court's decision to deny petitioner post-conviction habeas corpus relief based on the alleged errors raised herein, which errors were also argued below. Indeed, the habeas court's order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the habeas court's order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the court's findings and conclusions as they relate to petitioner's assignments of error raised herein and direct the Clerk to attach a copy of the court's January 25, 2018, order denying petitioner's petition for a writ of habeas corpus to this memorandum decision.

         For the foregoing reasons, we affirm. Affirmed.

          CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice Margaret L. Workman Justice Tim Armstead Justice Evan H. Jenkins

         DISQUALIFIED: Justice John A. Hutchison

         STATE OF WEST VIRGINIA, ex rel. Marvin Mills, Petitioner

         v.

         THOMAS MCBRIDE, WARDEN MOUNT OLIVE CORRECTIONAL COMPLEX Respondent

         CASE NO. 06-C-784-H

         FINDINGS OF FACT

         1. On the afternoon of September 8, 1999, Pamela Cabe was fatally shot inside her place of business at Richmond Cleaners in Beckley, West Virginia and the Petitioner, Marvin Mills (hereinafter Mills) was apprehended outside Richmond Cleaners immediately after the killing with a .38 caliber pistol a few feet away; he confessed to shooting and killing Pamela Cabe with that pistol.

         2. Following a jury trial in the Circuit Court of Raleigh County, Mills was convicted on May 2, 2000 of first degree murder by use of a firearm, without a recommendation of mercy, and was sentence by Judge John Hutchinson to life in the penitentiary without possibility of parole. Thereafter, the conviction was reversed and remanded by the W. V. Supreme Court of Appeals in State v. Mills, 566 S.E.2d 891 (2002).

         3. A second jury trial was held in Raleigh County Circuit Court and on November 7, 2003, Mills was again convicted of first degree murder by use of a firearm without a recommendation of mercy, and was again sentenced by Judge John Hutchinson to life imprisonment without the possibility of parole: thereafter, such conviction and sentence were affirmed by the W.Va. Supreme Court of Appeals in 5tafe v. Mills, 631 S.E.2d 586 (2005).

         4. During his first trial Mills was represented by two attorneys from the Raleigh County Public Defender's Office; in his second trial he was represented by John Sullivan and Stephen Kenney of the Kanawha County Public Defender's Office and in his first and second appeals he was represented by at least two other attorneys from the appellate division of the Kanawha County Public Defender's Office.

         5. On June 26, 2013, Mills, by counsel, filed an Amended Petition for Writ of Habeas Corpus (hereinafter the Petition).

         6. The Petition (at 2) recites the fact that this habeas proceeding has been pending since 2006 and that "appointed counsel has changed over the years," with Mills' present habeas counsel, Stephen New, appointed by Order of Judge John A. Hutchison on or about May 12, 2011.

         7. On September 20, 2012 Judge John A. Hutchison voluntarily recused himself from this matter, for reasons wholly unrelated to this case, and by Order of the W.Va. Supreme Court of Appeals the undersigned Senior Status Judge John L. Cummings (hereinafter the Court) was assigned to preside over an omnibus habeas corpus hearing and to rule upon the matters raised in the Petition.

         8. This Court has reviewed the Petition, the State's Response to Amended Petition for Writ of Habeas Corpus, the original pro se Petition for Writ of Habeas Corpus and the subsequent Amended Petition filed by prior habeas counsel, the Writ of Prohibition and responses thereto and the W.Va. Supreme Court ruling concerning recusal of Judge John A. Hutchison and the prosecuting attorney, the transcripts of the defendant's two trials, the records of and opinions resulting from his two direct appeals, the records maintained in the Raleigh County Circuit Clerk's Office, including several forensic evaluations of the defendant and multiple letters and pro se pleadings from Mills to the Raleigh County Circuit Court and to the W.Va. Supreme Court of Appeals, and the testimony taken and exhibits introduced during the July 15, 2014 habeas hearing.

         9. The defendant in his verification of June 4, 2013, filed with the Petition, knowingly and intelligently waived all grounds included in the "Losh List," Losh v. McKenzie, 277 S.E.2d 606 (W.Va. 1981) and all other grounds for habeas review with the exception of the grounds alleged in the Petition. Habeas Corpus Hearing Tr. 8-9.

         10. The Petition contains grounds designated "A" through "P," titled as follows: (Errors in grammar, punctuation, spelling and capitalization in original}.

         A. "Ineffective Assistance of Counsel." Petition at 9-36.

         B. 911 Recordings." Petition at 36-43. C. "Failure preserve audiotape recorded statements." Petition at 43-47.

         D. "Violation of the Petitioner's Sixth Amendment Constitutional Right to Confront Witnesses." Petition at 47-52.

         E. "The Raleigh County Prosecuting Attorney's Office Committed Prosecutorial Misconduct with respect to Petitioner." Petition at 52-53.

         F. "Prior Acts of prosecutorial misconduct." Petition at 53-56.

         G. "Ms. Keller has Acted as an Over Zealous Advocate Instead of a Quasi-Judicial Mister of Justice." Petition at 56-61.

         H. "The Judges of the 10th Judicial Circuit violated Trial Court Rule 17 resulting in an improper transfer of the Petitioner's case." Petition at 61-65.

         I. "The 10th Judicial Circuit had an appearance of bias against the Petitioner." Petition at 65-68.

         J. "The Trial Court 'abused its discretion' where it failed to bifurcate the trial and sentencing in derogation of West Virginia Constitution. Article III. § 10 and United States Constitution, Amendments 5 and 14 where the Defendant was prejudiced by his counsel's inability to argue mercy without admitting guilt." Petition at 68-73.

         K. "The Trial Court Abused Its Discretion By Refusing To Strike Two Jurors For Cause Who Stated They Could Not Consider A Recommendation Of Mercy, Violating Mills' Right To A Trial By A Fair And Impartial Jury." Petition at 73-89.

         L. "The Trial Court Abused Its Discretion By Allowing Improper Media Involvement That Caused Prejudice To The Petitioner And Resulted In An Inability To Receive A Fair Trail And Was A Violation Of Due Process." Petition at 89-93.

         M. "The Trial Court Denied Mills His Right To Due Process And A Fair Trial When It Denied His Motion For A Mistrial As A Result of the Jury View Of The Crime Scene Which Became A 'Walking Parade' Where The Press Walked With And Photographed The Jurors." Petition at 93-98.

         N. 'The Trial Court committed constitutional error by permitting the entrance of gruesome photos over objection, which denied the Petitioner a fair trial with reliable results in violation of West Virginia Constitution, Article III, § 10 and 14 and United States Constitution. Amendments 5.6. and 14." Petition at 99-104.

         O. "Court Abused Its Discretion by Denying Petitioner a Bifurcated Trial on the Issue of Eligibility for Probation." Petition at 104-108.

         P. "Fruit of the Poisonous Tree-No Miranda warning/coercion to give 'voluntary statement.'" Petition at 108-115.

         11. This Court finds as fact that pursuant to W.Va. Code § 53-4A-1, the W.Va. Supreme Court of Appeals previously and finally adjudicated a number of Mills' claims in 5tote v. Mills, 631 S.E.2d 586 (2005): these claims are designated in the Petition as "D," "F," (as to prosecutor's closing argument), "K," "L," "M."

         12. As to the remaining claims in the Petition, this Court finds as fact that Mills has offered no evidence to rebut the § 53-4A-1 presumption that he "intelligently and knowingly failed to advance" several of his habeas "contentions and [ ] grounds in fact or law" which "could have been advanced by the petitioner before trial, at trial, or on direct appeal... but were not in fact so advanced"

         13. The Petition contains no claim of ineffectiveness of appellate counsel and Mills and his habeas counsel have confirmed that Mills makes no such claim: accordingly, pursuant to W.Va. Code § 53-4A-1, any such contention has been "intelligently and knowingly" waived. Habeas Corpus Hearing Tr. at 91-92, 175. McBride v. Lavigne, 737 S.E.2d 560, 573 (W.Va. 2012).

         14. The "contentions and the grounds in fact or law" which could have been advanced by Mills on direct appeal, but were not advanced, and which are deemed intelligently and knowingly waived are designated in the Petition as follows: "B," "C," "E," "F" (as to contentions in addition to prosecutor's closing argument), "G," "H, "I," "J," "N," "0" and "P."

         15. The sole remaining ground for consideration by the Court is the claim of ineffective assistance of counsel designated "A" in the Petition.

         16.The Petition (at 11-36} alleges eight specific instances of ineffectiveness of Mills' two trial attorneys, beginning with "1. [ ] Counsel Failed to Question or Have Suppressed Petitioner's ...


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