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Galloway v. Mutter

Supreme Court of Appeals of West Virginia

November 4, 2019

Tony Galloway, Petitioner Below, Petitioner
v.
R.S. Mutter, Deputy Superintendent, Respondent Below, Respondent

          (Wood County 07-P-82)

          MEMORANDUM DECISION

         Petitioner Tony Galloway, by counsel Reggie Bailey, appeals the April 12, 2018, order of the Circuit Court of Wood County denying his petition for a writ of habeas corpus. Respondent R.S. Mutter, Deputy Superintendent of McDowell County Corrections, [1] by counsel Holly M. Flanigan, Assistant Attorney General, 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.

         On September 15, 2000, Tony Galloway was indicted by the Wood County Grand Jury on the following charges: murder, conspiracy to commit murder, two counts of burglary, conspiracy to commit burglary, grand larceny, conspiracy to commit grand larceny, and contributing to the delinquency of a minor. The charges stemmed from the death of Christian Bush at the hands of petitioner and several co-defendants. Although the co-defendants had a role in committing the crimes, the record established that petitioner had a substantially larger and more violent role in the commission of the crimes.

         Petitioner entered a guilty plea to murder and grand larceny. At the time of the guilty plea, the circuit court engaged in a lengthy colloquy with petitioner and developed a factual record to show that the plea was knowingly and intelligently made. The circuit court specifically advised petitioner: "You understand, however, that the court can and maybe will make a recommendation that you not be released on parole?" To which, petitioner responded, "[y]es." Petitioner was sentenced to life in prison with mercy on the murder charge and one to ten years in prison on the grand larceny charge. The circuit court recommended to the parole board that petitioner never be granted parole.

         Petitioner did not file a direct appeal of his conviction or sentence, however he did file a petition for writ of habeas corpus. The petition for writ of habeas corpus alleged three grounds for relief: 1) that petitioner was denied effective assistance of counsel; 2) that the sentence imposed upon petitioner is not what was contemplated or agreed to in his plea agreement, and therefore was not willing or voluntary; and 3) that petitioner's sentence is so grossly disproportionate to that of his similarly situated co-defendants that it violates Article III, Section 10 of the West Virginia Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution. The trial court conducted a hearing and entered an order denying petitioner habeas corpus relief on July 5, 2012.

         On June 28, 2017, petitioner filed a pro se petition for writ of habeas corpus, effectively mirroring his prior writ. After the circuit court appointed counsel for petitioner, counsel determined that an appeal had been sought, but was not perfected, following the entry of the July 5, 2012, order. Thus, counsel moved to have the order of July 5, 2012, reentered for the purpose of seeking this appeal. On April 12, 2018, the circuit court reentered the July 5, 2012, order denying petitioner's requested relief. This appeal followed.

         This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"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).

         Despite petitioner's prior sworn statement that he was fully satisfied with trial counsel's representation, he now contends that the circuit court erred in finding that he was provided effective assistance of counsel. With regard to this claim, we have held:

3. "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." Syllabus point 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
. . . .
6. In cases involving a criminal conviction based upon a guilty plea, the prejudice requirement of the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), demands that a habeas petitioner show that there is a reasonable probability that, but for ...

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