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State ex rel. Mitchell v. Miller

Supreme Court of Appeals of West Virginia

October 11, 2019

State of West Virginia ex rel. Jamel Kahalid Mitchell, Petitioner, Defendant Below
v.
Robin Miller, Superintendent, Huttonsville Correctional Center, Respondent, Plaintiff Below

          Laura Young Assistant Prosecuting Attorney

          (Kanawha County 15-P-109)

          MEMORANDUM DECISION

         Petitioner Jamel Kahalid Mitchell, by counsel Charles R. Hamilton, appeals the Circuit Court of Kanawha County's May 22, 2018, final order denying his petition for writ of habeas corpus. Respondent State of West Virginia, by counsel Holly M. Flanigan, filed a summary response in support of the circuit court's order. Petitioner filed 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.

         On January 25, 2018, petitioner and Aaron Williams ("the victim") were at the home of a mutual friend when petitioner asked the victim for a ride home and the victim agreed. Petitioner and the victim were the only persons in the vehicle at the time in question, with the victim driving and petitioner riding as a front seat passenger. When they arrived at the home petitioner identified as his, the victim stopped the vehicle and waited for petitioner to exit. As the victim was waiting, petitioner shot him twice in the face.

         Petitioner contends that the victim attempted to rob him, causing him to shoot the victim. However, the victim denied attempting to rob petitioner. The victim stated that there were no disagreements or arguments between the men and that petitioner "said nothing to him," just simply shot him. It is undisputed that after the shooting both men exited the vehicle. The victim recalled getting out of the vehicle, walking to an adjacent roadway, and later waking up in the hospital. Less than ten minutes after the victim exited the vehicle, petitioner returned to the vehicle, allegedly to ensure that the victim was dead. When he did not observe the victim, petitioner drove the vehicle from the scene and, ultimately, to Philadelphia, Pennsylvania. It was later discovered that petitioner "did not like the victim" because the victim was related to an individual who reportedly shot petitioner's friend. Petitioner allegedly made representations, some time prior to the incident at issue, that he intended to kill the victim.

         Thereafter, petitioner was indicted on charges of first-degree robbery, attempted first-degree murder, and malicious wounding. A jury trial on petitioner's charges commenced on February 23, 2009. Petitioner did not testify at trial. During the trial, the circuit court engaged in "the required colloquy" with petitioner to determine whether he wished to testify. Petitioner, then 19 years of age, was noted by the circuit court as being literate, having his General Education Development Certification ("GED"), and having an understanding of the charges against him. The court noted that petitioner was "engaging, actively, with his counsel throughout the trial" and was "an active participant in his defense." During the colloquy, the court advised petitioner that the decision to testify was his choice alone. Petitioner acknowledged his rights and chose not to testify. During trial, petitioner's counsel, William Lester, argued that petitioner acted in self-defense "and necessity in taking the vehicle," as opposed to taking the vehicle with the intent to steal. The State argued against self-defense and necessity. Ultimately, petitioner was found guilty of each of the charges against him. A special interrogatory was submitted to the jury, and the jury determined that petitioner used a firearm in the commission of these offenses. Petitioner was sentenced to serve forty years of incarceration on the robbery charge, three to fifteen years for attempted first-degree murder, and two to ten years for malicious wounding.

         Petitioner filed a direct appeal of his conviction, which was affirmed by this Court in State v. Mitchell, No. 101577, (W.Va. Apr. 18, 2011) (memorandum decision). On March 20, 2015, petitioner, pro se, filed his petition for writ of habeas corpus. Counsel was appointed for petitioner and a supplemental petition was filed on petitioner's behalf on June 24, 2016.[1] In his habeas petitions, petitioner asserted that his trial counsel was ineffective in several respects: (1) in coercing petitioner not to testify and creating a self-defense defense; (2) in failing to establish that the victim's car was not in the lawful possession of petitioner; (3) in failing to move for a judgment of acquittal on the robbery charge; and (4) in failing to present the theory that petitioner committed larceny of the vehicle rather than robbery.

         An omnibus hearing on petitioner's habeas petitions was held on December 6, 2016. Petitioner testified, but no other witnesses were called on his behalf. Petitioner's trial counsel was then a fugitive from justice, having been indicted on several charges unrelated to the instant case. Trial counsel's whereabouts were unknown at the time of the omnibus hearing, but he was believed to be living outside of the United States.

         By order dated May 22, 2018, the circuit court denied petitioner's requested writ of habeas corpus. The circuit court found that much of petitioner's testimony at the omnibus hearing "particularly regarding the advice, or lack thereof regarding [petitioner] testifying at trial, and the development of trial strategy lacks credulity." A review of the colloquy engaged in by the court and petitioner during petitioner's trial reveals that petitioner was advised multiple times that the decision to testify, or not, was his and his alone. Accordingly, the circuit court determined that petitioner's trial counsel was not ineffective regarding petitioner's decision not to testify. Petitioner did not sustain his burden demonstrating that the advice given to him regarding testifying was "objectively unreasonable" or that, if he had testified, "the outcome of the trial would have been different." See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

         The remainder of petitioner's claims regarding the alleged ineffectiveness of his trial counsel relate to petitioner's robbery conviction. Petitioner is critical of his counsel's failure to move for dismissal of the robbery charge for a defect in the indictment (related to the victim's presumed lawful possession of the vehicle); counsel's failure to move for a judgment of acquittal; and counsel's failure to present a theory that petitioner's actions in leaving the scene of the crime in the victim's vehicle was a larceny rather than robbery. The court found that the indictment was "facially sufficient" and that there was "more than sufficient" evidence adduced at trial regarding the victim's lawful possession of the vehicle at issue. The court further found that petitioner's trial counsel was not ineffective in not moving for a judgment of acquittal, as such motion would have been denied by the court. As to the propriety of trial counsel's actions related to presentation of evidence that petitioner committed larceny, rather than robbery, the trial court noted that there was no evidence that petitioner simply took the vehicle without the use of deadly force.[2] The court states that it is not objectively deficient performance of counsel, like petitioner's counsel here, to "fail to espouse a theory which flew in the face of the evidence." Accordingly, the circuit court found that that each of petitioner's arguments related to larceny were without merit as the same did not meet the requirements of Miller.

         As to petitioner's contentions that his habeas counsel was ineffective in failing to call other witnesses and, in essence, failing to develop an adequate record at the omnibus hearing, the circuit court found no merit to petitioner's claims. The habeas court, which was the same court before which petitioner's underlying criminal case was tried, specifically noted that the court had "adequate information from its review of the file, including the trial transcript and all other pleadings in that file, as well as the habeas corpus matter as well as the transcript from the omnibus evidentiary hearing to make an informed decision regarding petitioner's claims of ineffective assistance of counsel." It is from the circuit court's May 22, 2018, order that petitioner now 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." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex. rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         On appeal, petitioner asserts two assignments of error. First, he argues that his habeas counsel was ineffective in calling no witnesses at the omnibus hearing other than petitioner. In his second assignment of error, petitioner argues that the circuit court abused its discretion in finding that petitioner's trial counsel was effective. Our review of the record supports the circuit court's decision to deny petitioner's petition for writ of habeas corpus as to each of petitioner's assignments of error. Petitioner's arguments presented herein were thoroughly addressed by the circuit court in its order denying petitioner habeas relief.

         The circuit court's order includes well-reasoned findings and conclusions as to the assignments of error now raised on appeal. Because we find no clear error or abuse of discretion in the circuit court's order or the record before us, we hereby adopt and incorporate the circuit court's findings and conclusions as they relate to petitioner's assignments of error raised on appeal and direct the Clerk to attach a copy of the circuit court's May 22, 2018, "Findings of Fact, Conclusions of Law, and Final Order" to this memorandum decision.

         For the foregoing reasons, we affirm the circuit court's denial of petitioner's petition for writ of habeas corpus.

         Affirmed.

          CONCURRED IN BY: CHIEF JUSTICE ELIZABETH D. WALKER JUSTICE MARGARET L. WORKMAN JUSTICE TIM ARMSTEAD JUSTICE EVAN H. JENKINS JUSTICE JOHN A. HUTCHISON

         IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA

         STATE OF WEST VIRGINI ex rel. JAMEL MITCHELL, PETITIONER,

         v.

         MARVIN PLUMLEY, WARDEN HUTTONSVILLE CORRECTIONAL FACILITY, RESPONDENT

         Civil Action No. 15-P-109

         FINDINGS OF FACT, CONLUSIONS OF LAW, AND FINAL ORDER

         Pending before this Court is the petitioner's amended petition for writ of habeas corpus. Following a review of the entire underlying criminal file; a review of the amended petition and supporting memorandum of law, and the response; a review of the testimony and argument from the omnibus evidentiary hearing, as well as an examination of the pertinent law, this Court makes the following findings of fact, conclusions of law and final order.

         I.

         FINDINGS OF FACT

         1. The petitioner was indicted in 08-F-393 for the felony offenses of first degree robbery, attempted first degree murder and malicious wounding.

         2. The petitioner does not challenge his convictions for attempted first degree murder and malicious wounding in this habeas proceeding.

         3. The case proceeded to trial. The defense proffered was that the petitioner shot the victim in self-defense; the victim having planned to rob the petitioner. (Trial Transcript, Day 2, February 24, 2009, at 26.)

         4. Aaron Williams, the victim, was a most reluctant witness. (Id. at 29.) Nonetheless, he stated that he had borrowed a car from his uncle the night before he was shot The night before he was shot, the victim drove the car to a club, and then to the home of Katrina Artis. (Id. at 31.) The petitioner was among other people present at the Artis' home. (Id. at 32.)

         5. The victim, petitioner and Katrina Artis went to 1HOP in the car that `the victim had borrowed from his uncle. (Id. at 33.) The vehicle was a 2003 white Impala-. (Id.)

         6. The victim returned to the Artis' residence and fell asleep. (Id. at 35.)

         7. The next morning the victim and the petitioner drove in the borrowed car to the east end. The petitioner was in the car when the victim was shot. (Id. at 36.) The petitioner had asked for a ride home. (Id. at 37.) The victim stopped the car, waiting for the petitioner to get out.

         8. The victim then remembered being shot in the face. (Id. at 38.) The victim-was shot in the car and there were no other persons in the car besides the victim and the petitioner. (Id. at38-39.) The petitioner was sitting in the front passenger seat. (Id. at 42.)

         9. The victim denied having a gun that night and denied robbing the petitioner or having any problems at all with him (Id. at 43.)

         10. After he was shot, the victim got out of the car and started walking down-the road. (Id. at 44.) The next thing he remembered was waking up in a hospital in Morgantown. (Id. at 44-45.)

         11. Although the victim waffled at trial, he had given a statement pre-trial stating that the petitioner had shot him. (Id. at 50.) Further, the victim's recollection was refreshed, and the-victim remembered telling the police that the petitioner had shot him. (Id. at 52.) "Huh-uh. Didn't say nothing. He just shot." (Id. at 53.)

         12. The pre-trial statement was played. The victim stated that the petitioner shot him, and there had been no disagreements or arguments. The victim didn't know why he'd been shot (Id. at 56.) Mr. Williams was shot two or three times, and then got out of the car and started walking. He did not know where the petitioner went. (Id. at 57.)

         13. Officer Guaraldo of the Philadelphia police department processed the car the victim was driving when he was shot, which the petitioner drove to Philadelphia. (Id. at 102.)

         14. Red stains were discovered on the front driver seat, the centerpiece of the steering wheel, and a "defect" found in the steering column. (Id. at 106-07.) A projectile was taken from the steering post. (Id. at 107.)

         15. While the victim was still being treated near the scene where he'd been shot-, he told Detective Jarl Taylor that he'd been shot by "Bucky." Detective Taylor knew that "Bucky" was the petitioner's nickname. (Id. at 124.)

         16. Katrina Artis knew the victim from having dated him, and her younger sister dated the petitioner. (Id. at 132-33.)

         17., She testified that there was an occasion when she, the victim, -her sister, and the petitioner were at her mother's house "hanging out." (Id. at 134.) A discussion ensued about a "Mike Jones" or "Johnson." The petitioner told Ms. Artis he didn't like Jones because Jones had shot a friend. (Id. at 13S.) The petitioner later stated he didn't like the victim because the victim-was related to Mike Jones or Johnson. (Id. at 137.) Later, the petitioner told Ms. Artis he was going to kill the victim. (Id. at 138.)

         18. Later Katrina Artis, the victim and the petitioner drove to TJHOP in the victim's uncle's white car. (Id. at 139.)

         19. After they returned to the Artis' residence, but before they went to sleep, "Buck" (the petitioner) asked Artis about the petitioner giving him a ride to the east end in the morning. (Id. at 140.)

         20. Ms. Artis testified that the victim, to her observation did not have a weapon that day, but that the petitioner was armed with a black and silver gun. (Id. at 141.)

         21. Approximately fifteen minutes after Mr. Williams and the petitioner left in the white car, with the petitioner driving, Ms. Artis received a phone call from the petitioner. (Id. at 142-43.) The petitioner told her he was coming to her home.

         22. When he appeared, the petitioner had Mood on his shoes and pants, and he told her that".., he killed him. He said he shot him three times in the face." (Id. at 143-44.) The petitioner was in a rush to leave and said he was leaving town. (Id. at 144.)

         23. Ms. Artis stated on cross-examination that the victim believed she had ". . .set Jamel to rob him and shoot him." (Id. at 149.)

         24.Janelle Artis was in school when-she received a phone call from her then boyfriend "Buck", the petitioner. (Id. at 157.) She went to Philadelphia with the petitioner after the-shooting. They were in "Aaron's" car, the white Impala. She was-in Philadelphia for two weeks when she and the petitioner were found at the petitioner's uncle's house. (Id. at 159.)

         25. The victim received two gunshot wounds to the face. The bullets went ...


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