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Burgess v. Ames

Supreme Court of West Virginia

June 17, 2019

Scott Boyd Burgess, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Fayette County 17-C-212

          MEMORANDUM DECISION

         Petitioner Scott Boyd Burgess, pro se, appeals the October 16, 2017, order of the Circuit Court of Fayette County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Julianne Wisman, filed a response in support of the circuit court's order.

         The 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.

         This case concerns the arson of a mobile home wherein petitioner was residing with eleven other individuals, including petitioner's ex-wife with whom he was attempting a reconciliation. In January of 2010, petitioner was indicted on one count of first-degree arson for setting the mobile home on fire and on one count of first-degree murder because another of the occupants, who was inside the residence, died from smoke inhalation. Petitioner's trial was initially scheduled for March 9, 2010. However, in March of 2010, petitioner's first attorney moved for a continuance. The circuit court rescheduled the trial for May of 2010, but the trial did not begin on that date. Instead, between May of 2010 and April of 2011, the circuit court appointed four different attorneys to represent petitioner. Petitioner filed motions to remove the first three of those attorneys and to appoint substitute counsel based on his claims of ineffective assistance.[2]

         The fourth attorney who was appointed as counsel remained as such through the trial. In April of 2011, petitioner's case came on for trial. The State presented evidence that petitioner was angry that his ex-wife decided to leave him and that he threatened to burn her belongings. The State also presented evidence that petitioner made incriminating statements to a neighbor and a sheriff's deputy about burning down the mobile home in which the couple was living. The jury found petitioner guilty of first-degree murder of the mobile home resident who died from smoke inhalation as a result of petitioner's commission of first-degree arson. In June of 2011, the circuit court sentenced petitioner to a life term of incarceration with the possibility of parole. In State v. Burgess, No. 11-1094, 2012 WL 3104312, at *3 (W.Va. May 29, 2012) (memorandum decision), this Court found that the evidence was sufficient to sustain petitioner's conviction and affirmed the circuit court's judgment.

         In August of 2012, petitioner filed a petition for a writ of habeas corpus, and the circuit court appointed habeas counsel. In December of 2013, petitioner's counsel filed an amended habeas petition and a Losh checklist in which petitioner raised fourteen grounds for relief: (1) denial of the right to a speedy trial; (2) ineffective assistance of trial and appellate counsel; (3) irregularities in arrest; (4) excessiveness or denial of bail; (5) refusal to subpoena witnesses; (6) lack of a full public hearing; (7) constitutional errors in evidentiary rulings; (8) sufficiency of evidence; (9) petitioner's absence from part of the proceedings; (10) improper communications between the prosecutor or a witness and the jury; (11) cumulative effect of numerous errors; (12) newly discovered evidence; (13) incomplete transcript; and (14) intoxicated witnesses testifying with knowledge of prosecution.[3]

         The circuit court held an omnibus habeas corpus hearing on February 10, 2014, and March 24, 2014. At the February 10, 2014, hearing, petitioner acknowledged on the record that the Losh list was a complete and accurate reflection of those grounds for relief that petitioner wished to assert and that he was freely, voluntarily, and with the assistance of counsel, waiving all other grounds not asserted in the Losh list. The circuit court also heard testimony from petitioner, the attorney who represented him at trial, and the lead investigating detective. At the March 24, 2014, hearing, the circuit court heard the testimony of a fourth witness who testified that she observed two witnesses drinking beer outside the courthouse during a recess in petitioner's trial. Based on the evidence presented, the circuit court denied habeas relief by order entered on July 2, 2014.

         Petitioner appealed the circuit court's July 2, 2014, order in Burgess v. Ballard, No. 14-0750, 2015 WL 7628844 (W.Va. November 23, 2015) (memorandum decision). This Court found that petitioner's arguments on appeal were "based on his contentions that his various appointed attorneys would not comply with his directions" and that "[t]he record is clear that these same arguments were adjudicated below." Id. at *2. This Court found that the circuit court did not err in denying petitioner's habeas petition and "adopt[ed] and incorporate[d] [the circuit court's] well-reasoned findings of fact and conclusions of law" and affirmed the July 2, 2014, order. Id. at *3.

         Petitioner initiated this habeas proceeding on June 7, 2017, and then filed an amended petition on September 6, 2017, alleging that his habeas attorney had been ineffective in the first such proceeding.[4] By order entered October 16, 2017, the circuit court determined that there was no merit to petitioner's claim that habeas counsel failed to adequately review the Losh list with petitioner. The circuit court found that, in the earlier proceeding, habeas counsel "informed the [c]ourt that he had thoroughly reviewed and explained the Losh [l]ist with . . . [p]etitioner prior to the omnibus hearing" and that, "upon inquiry by the [c]ourt, . . . [p]etitioner affirmed [h]abeas [c]ounsel's responses to the [c]ourt's questioning and advised the [c]ourt that he fully understood the concept of waiver and the purpose behind the Losh [l]ist." (Emphasis and citations to the record omitted.).

         More generally, the circuit court found that petitioner's claims satisfied neither prong of the applicable Strickland/Miller standard for evaluating ineffective assistance of counsel:

At first blush, the [o]riginal [p]etition and [a]mended [p]etition appear quite lengthy, but a detailed review reveals, and the [c]ourt accordingly FINDS, that the vast majority of [their] content is a restatement of the exact grounds and issues raised and thoroughly adjudicated on the merits in the earlier habeas matter. [Petitioner] simply restates each of his earlier claims as put forth in his first habeas petition, and then essentially argues that[, ] since he did not receive relief upon those claims, or upon appeal of this [c]ourt's [f]inal [o]rder denying relief on those claims, then [h]abeas [c]ounsel's performance must have been deficient. While it is clear that [petitioner] would have this [c]ourt belabor a second review of each of the grounds raised in the underlying habeas proceeding, the [c]ourt will not now revisit these same issues even though they are cloaked in an ineffective assistance of habeas counsel claim and put forth in this [p]etition with only slightly different nuances, as the [c]ourt FINDS that these issues have been fully and fairly adjudicated in the earlier proceeding.
Even if this [c]ourt assumed arguendo that some of [p]etitioner's claims had merit and [petitioner] could establish a deficiency on the part of [h]abeas [c]ounsel, [p]etitioner's claims must still fail. [Petitioner] simply cannot overcome the prejudice hurdle, as the claims raised by [petitioner] were thoroughly adjudicated, not only based upon the evidence put forth by [petitioner] and his [h]abeas [c]ounsel, but also upon the evidence existing in the record of the underlying criminal matter. Based upon the record in its entirety, this [c]ourt remains steadfast in its belief that, under the prejudice prong of Strickland/Miller, [petitioner] is unable to establish that any error on the part of [h]abeas [c]ounsel rose to the level of constitutional error that more likely than not would have resulted in a different outcome, either in the underlying habeas proceeding or on appeal to the West Virginia Supreme Court of Appeals.

         (Emphasis and footnotes omitted.). Accordingly, the circuit court denied petitioner's habeas petition.

         Petitioner now appeals the circuit court's October 16, 2017, order denying the instant habeas petition. We review the circuit ...


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