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John S. v. Pszczolkowski

Supreme Court of Appeals of West Virginia

September 3, 2019

John S., Petitioner Below, Petitioner
v.
Karen Pszczolkowski, Superintendent, Northern Correctional Facility, Respondent Below, Respondent

          (Roane County 15-C-46)

          MEMORANDUM DECISION

         Petitioner John S., [1] pro se, appeals the April 30, 2018, order of the Circuit Court of Roane County denying his petition for a writ of habeas corpus. Respondent Karen Pszczolkowski, Superintendent, Northern Correctional Facility, [2] by counsel Holly M. Flanigan, filed a response in support of the circuit court's order. Petitioner filed a reply.

         The Court has considered the parties' briefs and the record on appeal.[3] 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.

         Petitioner was charged with sexually molesting his minor stepdaughters, C.L. and S.W. The grand jury indicted petitioner on three counts of sexual abuse by a parent, guardian, or custodian as to C.L. and three counts of sexual abuse by a parent, guardian, or custodian as to S.W. Following a jury trial, petitioner was convicted on all six counts charged in the indictment. The circuit court imposed a combination of concurrent and consecutive sentences upon petitioner, and he received an aggregate term of thirty to sixty years of incarceration with a $30, 000 fine and fifty years of supervised release. Petitioner appealed his convictions in State v. [John S.], No. 12-0191, 2013 WL 949524 (W.Va. Mar. 12, 2013) (memorandum decision). In [John S.], this Court rejected petitioner's argument that the circuit court erroneously admitted his confession into evidence and improperly admitted evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence and affirmed his convictions. Id. at *1-2.

         On October 2, 2015, petitioner filed a petition for a writ of habeas corpus. By order entered October 9, 2015, the circuit court appointed an attorney to represent petitioner in the habeas action. Habeas counsel filed an amended petition on September 21, 2017. In the amended petition, petitioner argued that (1) trial counsel was ineffective; (2) petitioner's confession was coerced; and (3) petitioner's father's testimony was erroneously ruled inadmissible under the collateral issue doctrine. Respondent filed an answer to the amended petition on January 12, 2018. On April 30, 2018, the circuit court entered a comprehensive order finding that none of petitioner's grounds necessitated an evidentiary hearing and denying habeas relief.

         It is from the circuit court's April 30, 2018, order that petitioner now appeals. In Syllabus Points 1 and 3 of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016), we held:

1. "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).
. . . .
3. "'A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing . . . if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief.' Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973)." Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).

         On appeal, petitioner raises issues that have been previously and finally adjudicated and/or waived. We find that, in its April 30, 2017, order, the circuit court mistakenly described petitioner's criminal appeal as being refused without an adjudication on the merits. We note that Rule 21(a) of the West Virginia Rules of Appellate Procedure provides that "a memorandum decision address[es] the merits of the case." See In Re: T.O., 238 W.Va. 455, 464, 796 S.E.2d 564, 573 (2017); State v. McKinley, 234 W.Va. 143, 151, 764 S.E.2d 303, 311 (2014). Accordingly, we conclude that petitioner is precluded from arguing that (1) the circuit court erroneously admitted his confession into evidence and (2) improperly admitted evidence pursuant to Rule 404(b) because we rejected those issues in [John S.].[4]

         We further find that petitioner waived the admissibility of his father's testimony because he failed to raise that issue in [John S.]. Under the West Virginia Post-Conviction Habeas Corpus Act, W.Va. Code §§ 53-4A-1 to -11, "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." Syl. Pt. 2, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). Here, petitioner could have raised the admissibility of his father's testimony in his criminal appeal given that it was previously raised before the circuit court both at trial and in a post-conviction motion for a new trial that included the argument that the court erred in ruling his father's testimony inadmissible. Therefore, based on our review of the record, we conclude that petitioner fails to rebut the presumption that he intelligently and knowingly waived this issue by failing to raise it in his criminal appeal.

          The sole remaining issue raised by petitioner is that he did not receive effective assistance of trial counsel.[5] In Syllabus Points 5 and 6 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we held:

5. 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.
6. In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a ...

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