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,
counsel Holly M. Flanigan, Assistant Attorney General, filed
a response in support of the circuit court's order.
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.
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.
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
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.
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
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).
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 ...