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Jeffers v. Ames

Supreme Court of Appeals of West Virginia

November 15, 2019

Keith R. Jeffers, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Kanawha County 17-P-84

          MEMORANDUM DECISION

         Petitioner Keith R. Jeffers, pro se, appeals the May 14, 2018, order of the Circuit Court of Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Scott E. Johnson, 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. 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 orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner was convicted on January 28, 2008, of three counts of first-degree murder, one count of attempted first-degree murder, one count of attempted second-degree murder, two counts of malicious assault, and one count of burglary. With regard to the murder convictions, the jury did not recommend mercy. Accordingly, the circuit court sentenced petitioner to three life terms of incarceration without the possibility of parole and imposed the statutory maximum sentence for each of the other counts. The circuit court ordered that petitioner serve his sentences consecutively. Petitioner sought review of his convictions, but this Court refused his appeal on June 3, 2009. The Supreme Court of the United States denied certiorari. See Jeffers v. West Virginia, 559 U.S. 1092 (2010).

         On May 26, 2010, petitioner filed his first petition for a writ of habeas corpus, alleging four grounds of relief: (1) that a number of jurors were dismissed by the circuit court and the attorneys in advance of trial without petitioner's knowledge and without him being present; (2) that the circuit court erred in instructing the jury with regard to evidence of flight; (3) that the circuit court erred in failing to grant a continuance to permit the defense to locate a witness; and (4) that the circuit court erred in making various evidentiary rulings at trial. By order entered June 11, 2010, the circuit court denied habeas relief without a hearing, finding that the allegations regarding the dismissal of the jurors were untrue and that the other grounds lacked merit based upon the record before the court. Petitioner did not appeal the denial of his first habeas petition.

         On October 22, 2010, petitioner filed his second habeas petition, alleging a total of seven grounds for relief. The first four grounds were the same four grounds that petitioner previously raised in his first habeas proceeding. However, the final three grounds set forth in the second habeas petition were new: (1) that the circuit court improperly interfered with the underlying criminal case against petitioner; (2) that the prosecutor engaged in misconduct; and (3) that petitioner's trial counsel provided ineffective assistance. On October 25, 2010, the circuit court denied petitioner's second habeas petition without a hearing. Petitioner appealed the circuit court's October 25, 2010, order in Jeffers v. Ballard ("Jeffers I"), No. 11-0433, 2012 WL 3031055 ( W.Va. Mar. 12, 2012) (memorandum decision). This Court affirmed the denial of petitioner's second habeas petition.

         On February 15, 2017, petitioner filed a third habeas petition, alleging five grounds of relief: (1) that petitioner's trial counsel provided ineffective assistance; (2) that the prosecutor elicited false testimony from an expert witness; (3) that the two surviving victims misidentified petitioner as the shooter through overly suggestive photo arrays; (4) that insufficient evidence supported petitioner's convictions; and (5) that petitioner was denied due process at his trial because of the cumulative effect of various errors. The circuit court first denied the petition by order entered May 9, 2017, finding that, based on a review of the record, "[petitioner's] contentions of fact and law fail to adequately support his grounds for extraordinary post-conviction relief."

         Petitioner appealed the circuit court's May 9, 2017, order in Jeffers v. Terry ("Jeffers II"), No. 17-0490, 2018 WL 1444292 ( W.Va. Mar. 23, 2018) (memorandum decision).[2] In Jeffers II, this Court affirmed the denial of the third habeas petition as to all grounds except for ineffective assistance of counsel. With regard to that claim, we reversed the May 9, 2017, order and remanded the case to the circuit court "for specific findings of fact and conclusions of law as to whether petitioner's ineffective assistance claim fails under the applicable Strickland/Miller standard." Id. at *3.[3]

         Following remand, the circuit court entered a comprehensive order on May 14, 2018, setting forth specific findings of fact and conclusions of law showing that petitioner's ineffective assistance claim was without merit. In finding that petitioner was not entitled to habeas relief, the court specifically determined that there was no need to hold a hearing or appoint habeas counsel.

         It is from the circuit court's May 14, 2018, order denying his third habeas petition 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 and without appointing counsel for the petitioner 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 argues that the circuit court erred in failing to hold a hearing and in failing to appoint counsel prior to finding that his ineffective assistance claim lacked merit. Respondent counters that the circuit court properly determined that the claim did not justify the holding of a hearing or appointment of habeas counsel and correctly denied petitioner's petition. We agree with respondent.

         In Jeffers II, we relied on our decision in State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997), in remanding the case for specific findings of fact and conclusions of law. In Watson, we directed the habeas court to hold a hearing on the petitioner's ineffective assistance claim. Id. at 205, 488 S.E.2d at 480. However, we further indicated that a hearing might not have been ordered if the habeas court had made findings adequate to show that the petitioner's claim would have failed under the Strickland/Miller standard, stating that "[i]f that was the court's reasoning, it should have been included in the order[.]" Id. at 204, 488 S.E.2d at 479.

         Here, in accordance with our mandate from Jeffers II, the circuit court set forth findings in its May 14, 2018, order showing that petitioner's ineffective assistance claim fails under the Strickland/Miller standard. The circuit court further made the specific determination that there was no need to hold a hearing or appoint habeas counsel. Based on our review of the record, we concur with the circuit court's findings. Therefore, having reviewed the circuit court's May 14, 2018, "Final Order Denying and Dismissing Petition for Writ of Habeas Corpus," we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions, which we find address petitioner's assignments of error. The Clerk is directed to attach a copy of the May 14, 2018, order to this memorandum decision. Accordingly, we conclude that the circuit court properly denied petitioner's habeas petition.

         For the foregoing reasons, we affirm the circuit court's May 14, 2018, order denying petitioner's third petition for a 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

         KEITH R. JEFFERS, PETITIONER, V. RALPH TERRY, ACTING WARDEN MOUNT OLIVE CORRECTIONAL COMPLEX

         Civil Action No. 17-P-84

          Tod J. Kaufman, Judge

         ORDER DENYING AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

         By memorandum decision filed March 28, 2018 (which became final by mandate thirty days later), the West Virginia Supreme Court of Appeals affirmed this Court's summary dismissal of all of petitioner's claims in his latest petition for writ of habeas corpus, but remanded the matter to this Court for specific findings of fact and conclusions of law as to petitioner's claim of ineffective assistance of counsel.

         This Court has painstakingly reviewed the entire file from the underlying criminal conviction, including but not necessarily limited to hearing transcripts, trial transcripts, motions filed, orders filed and the petition for appeal filed on behalf of the petitioner after his conviction. Additionally, the Court has reviewed the petitions, orders and decisions from petitioner's previous filings in habeas corpus. Finally, the Court has reviewed, with particularity, the claims of ineffective assistance of counsel as pled in the pending petition along with the exhibits attached to that petition which purport to support petitioner's claims.

         The Court has determined that- trial counsel was reasonably effective, as will be demonstrated below in the findings of fact, conclusions of law and discussion. As to each instance in which petitioner claims trial counsel was ineffective, this Court finds that trial counsel was not ineffective under the applicable Strickland/Miller standard. That is, either the actions of trial counsel were not objectively deficient or those actions did not affect the result of the proceeding or both. Additionally, some of petitioner's claims are mere recitation of grounds without any factual support. This Court has determined that there is no necessity to appoint counsel in this matter or to hold an evidentiary hearing.

         Petitioner's specific claims of ineffective assistance of trial counsel are as follows: (a) Trial counsel was ineffective for failing to investigate others who had motive and could have committed the murders (including a "purported confession"); (b) trial counsel did not investigate a claim that witness Toni Pantoja threatened another, unnamed witness; (c) trial counsel did not investigate a threatening phone call to a prospective juror; (d) trial counsel did not explore relationships between the police officers and the deceased (stating that Detective Richard Ingram and Amanda Ingram shared a last name); (e) trial counsel, was ineffective for only calling one witness (petitioner does not state who else should have been called or what they might have testified to); (f) trial counsel did not impeach witnesses and (g) counsel did not object to Detective Ingram's "false" and "irrelevant" testimony regarding .40 Smith and "Wesson casings. Additionally, this Court must note that in support of his claims the petitioner has chosen to include only partial transcripts. The petitioner has also chosen to include statements in those transcripts in presumably his own handwriting. This Court has relied on, the whole transcripts, minus the commentary in making its decision.

         I.

         STATEMENT OF THE CASE

         As this Court's decision, in part, rests upon the overwhelming nature of the evidence against the petitioner, a detailed recitation of that evidence will be necessary in this statement of the case.

         1. The petitioner was indicted for, and convicted of, the first-degree murders of Dennis Lovejoy, Amanda Ingram and Gregory Childress. He was convicted of attempted murder in the second degree of James Adkins, and also malicious assault of Mr. Adkins. The petitioner was convicted for attempted murder in the first degree of Jerry Allen, and also malicious assault of Mr. Allen. The petitioner was also indicted for and convicted of burglary. (Indictment 06-F-472; Jury Verdict Form, 06-F-472.

         2. Petitioner was appointed counsel who were active on his behalf pre-trial filing motions and challenging-the state's evidence. Counsel moved for, and received discovery. Counsel moved for individual voir dire. Counsel moved to dismiss a count of burglary; to exclude mention of race from the trial; to preclude any mention of the petitioner's street name "Little"; to exclude evidence of motive; to bifurcate; for additional peremptory challenges; to allow a jury questionnaire; and brought to the Court's attention motions drafted by the petitioner, (File, 06-F-472.)

         3. Counsel filed additional motions to exclude evidence of drug use and related evidence; to preclude explanatory answers on cross; to preclude speculative or conclusory statements; to limit evidence of flight; to exclude any reference to petitioner's previous criminal convictions and arrests; moved to have the petitioner evaluated for competency and any mental defense; and various motions in limine to bar hearsay evidence. (Id.)

         4. Heard before trial was evidence on a motion to suppress out of court identifications made by two of the state's witnesses from a photo array. (Pre-trial Hearing Transcript, January 17, 2008 at 12.) Those witnesses were Jerry Allen and James Adkins. Sean Snuffer of the Kanawha County Sheriffs Department had prepared those lineups. (Id. at 13.)

         5. Detective Snuffer prepared a photo lineup which included the petitioner and five other males who matched or resembled him. (Id. at 14.) The array was shown to James Adkins who was hospitalized. Mr. Adkins felt he knew who had shot him. The array was shown to Adkins. He was told to identify anyone he knew, but also told the person who shot him may or may not be in the array. (Id. at 15.) Detective Snuffer read directions to Adkins which were printed on a form or on the array itself. Other than those directions, Detective Snuffer told the witness nothing else. (Id. at 16.) Adkins pointed out Number 6 and said that was the person who did the shooting. "And he also shot me in the stomach." Adkins identified the petitioner and signed the array, identifying photo 6 as "Little." (Id.)

         6. Detective Snuffer prepared another array and showed it to Jerry Allen, who was also hospitalized. (Id. at 19.) The same procedure was used as was used with witness Adkins. Witness Adkins identified photo number 3 as the person who shot him, identifying number 3 as "Little." (Id. at 20.)

         7. Witness Adkins knew the petitioner prior to the shooting. (Id. at 22.) Mr. Allen also knew the petitioner before he was shot. (Id. at 23.)

         8. Trial counsel did inquire if any of the pictures were of "Dread". Detective Snuffer did not know because identifiers are not attached to the photos for the array. (Id. at 24.) Dread was identified by counsel as having been at the scene. (Id.)

         9. Although both witnesses had been acquainted with the petitioner before the shooting, the witnesses were shown a photo array to confirm, if possible, that Keith Jeffers was the individual they knew as "Little." (Id. at 27.) There were no other individuals involved in the investigation who were known as "Little." (Id.) Ultimately, the Court ruled that the witnesses would be permitted to identify the petitioner in court.

         10. Ms. Blake received an upsetting phone call and reported it to the clerk. (Trial Transcript, January 21, 2008 at 31.) The Court and counsel agreed to question her about the matter. (Id. at 32.) Ms. Blake had received a phone call on her cell phone on her way to Court that morning. The cell phone is not in her name, but in her employer's name. (Id.) A man represented himself to be an "officer" and that Ms. Blake had driven away a Silver Durango from a restaurant on Saturday night and that the three people she was with had "jumped" the caller. (Id. at 35-36.)

         11. Ms. Blake does not own a silver Durango. The person to whom she was talking started yelling at her. (Id. at 36.) Ms. Blake told the Court that there is another Leah Blake who lives in St. Albans who -was arrested for meth. (Id. at 37.) Ms. Blake was worried about her safety, believing that she had put that phone number on her jury questionnaire. The number was not on that questionnaire. (Id. at 37-38.) The person had given Ms. Blake a name, but she did not remember the name. (Id. at 40.) Upon inquiry, Ms. Blake had no problems remaining as a potential juror. (Id. at 41.)

         12. Deputy Duff was employed by the Kanawha County Sheriffs Department. (Id. at 250.) On June 6, 2006, he was dispatched to a shooting in the Amandaville area. (Id. at 251.) He was dispatched to an address at 111 Mary Street, which is beside 401 Riverside. (Id. at 252.) Deputy Duff met a man he knew as "Juice." Juice was walking toward the deputy from the Riverside residence. He was holding his stomach and bleeding from his stomach. (Id. at 253.)

         13. Juice answered in the affirmative when the Deputy asked him if he had been shot. (Id.) Juice told the Deputy that he had been shot by "Little". When pressed for a name, Juice told the Deputy "Keith." (Id. at 254.)

         14. Deputy Duff saw "Nook" face down on the ground with obvious wounds to his back and his left. (Id.) He'd been shot along with Juice. (Id.)

         15. Nook was drifting in and out of consciousness and couldn't give a name of who shot him. But he said they'd driven off in a small white car. (Id. at 255.)

         16. The paramedics told the Deputy there were three dead people in the house. (Id.). When he entered the house, Deputy Duff saw the dead victims and saw a bullet shell casing in the floor. (Id. at 256.) Deputy Duff recognized the female victim, Amanda Walker, and one of the male victims, Dennis Lovejoy. (Id.)

         17. When Deputy Duff walked to the back bedroom, he saw that the whole window and frame were lying in the front yard, and it was obvious someone had leapt from the window. (Id. at 257.)

         18. On cross examination, defense counsel noted that he had a report from Sergeant Elkins that Vincent White had been paid money to deliver a message to a Michael Thompson and is associates. The message was from "Drey" or "Key". The message was, essentially to pay up or else. (Id. at 271-272.)

         29. Dr. Umstot treated James Adkins on June 6, 2006. (Id. at 289.) He also treated the other gun-shot wound victim, Jerry Allen. (Id. at 290.)

         30. He operated on James Adkins for a gunshot wound traversing the abdomen. The wound extended from under the left side of the rib cage through the belly button area towards the general area of the appendix. (Id. at 292.) Mr. Adkins was positive for cocaine and THC upon admission. (Id. at 294.)

         31. Dr. Umstot noted that Mr. Allen had a gunshot wound to his left arm, a couple to his buttocks and one in his lower abdomen. (Id. at 296.) Mr. Allen needed further surgery to correct internal bleeding. (Id. at 297.) Ml Allen also was positive for cocaine and THC. (Id. at 299.)

         32. Richard Ingram was the crime scene technician from the Kanawha County Sheriffs Department. (Id. at 318.) Officer Ingram responded to the scene, which had been secured by other officers. The house was a one-story residence. One enters into a living room. To the front and right of the living room is a kitchen. To the left, down the hallway would be living quarters. (Id. ad 321.)

         33. Officer Ingram saw bullet casings in front of the couch in the living, and a couple of other places. (Id. at 322.)

         34. In the dining room were three bodies, close to one another. (Id.)

         35. la the dining room were bullets, casings and fragments from bullets. (Id. at 324.)

         36. There were bullet holes in the wall. (Id. at 325.)

         37. Two of the three bullets which had passed through the wall were found in the yard. (Id.) Mr. Ingram observed that to the far-left side of the residence a glass had been broken out where a person apparently jumped through it. Another window, almost exactly opposite, had also been knocked out by someone jumping through it. (Id. at 326.) Defense counsel objected to the speculation regarding people going through the windows, which was sustained. (Id. at 327.) The glass, however, was broken from the inside. (Id. at 328.)

         38. Mr. Ingram defined for the jury that casings are the brass part that holds the bullet and the powder. The casings found were Smith & Wesson .40 caliber. (Id. at 338.)

         39. A fired bullet was recovered from behind the stove in the kitchen. (Id. at 339.) The casings found in the living room were the same caliber. The import of that means the same type of weapon was used. (Id. at 343.)

         38. The shooter used a semi-automatic weapon, .40 caliber. As one shoots the gun, the bullet goes out the barrel, the casing is automatically ejected to the side and another round goes into the chamber. Every time one shoots, a casing is ejected. (Id. at 344.)

         39. Everything at the crime scene indicated that there was almost no movement at the time of the shooting and that the bodies were where they fell at the time of their deaths. (Id. at 345.)

         40. A crack pipe was found outside the residence and a crack pipe and lighter were recovered from Ms. Ingram's hands. (Id. at 346.)

         41. There was no evidence of a confrontation in the house. (Id. at 347.)

         42. Mr. Ingram collected a .40 caliber Smith and Wesson casing from the living room which was later sent for analysis at the State Police lab. (Id. at 362-363.) Another .40 caliber Smith and Wesson casing from the living room was also collected and sent to the lab for analysis. (Id. at 364.) Another Smith and Wesson .40 caliber casing was found in the living room and sent to the lab for analysis. (Id. at 365.) Another casing, also Smith and Wesson .40 caliber was recovered from the living room, near the television, and sent to the lab for analysis. (Id. at 366.) Another casing, Smith and Wesson .40 caliber was found near the right shoulder of Mr. Lovejoy. That casing was also analyzed by the state police lab. (Id. at 367.) Another Smith and Wesson .40 caliber casing was recovered from underneath Mr, Lovejoy's body. (Id. at 368.)

         43. Additional .40 caliber Smith and Wesson casings were recovered from the kitchen and dining area (id. at 369), a bucket in the dining area (id. at 370), a trash can in the dining area (id. at 371), from a stand and from a cup in the trash can. (Id.) All were .40 caliber Smith and Wesson casings and all were submitted to the state police lab for analysis, (Id. at 372.)

         44. Bullets were recovered from Jerry Allen (id. at 373), Dennis Lovejoy (id. at 374), the rear of the residence in the yard (id. at 375), another bullet from the yard (id. at 376), another bullet from the inside of the front door (id. at 377), another bullet from behind the stove (id. at 378), a bullet fragment from the kitchen (id.), a copper jacket from the kitchen (id.), and another bullet fragment from the kitchen (id. at 379). All those were sent to the state police lab for analysis. (Id.)

         45. A bullet fragment was recovered-from the head of Ms. Ingram at autopsy. (Id. at 380.) A fragment was recovered from Mr. Childress' neck. (Id.) Another bullet and fragments were recovered from Mr. Childress. (Id. at 381.) A bullet was recovered from Mr. Lovejoy's chest (Id.) Those items were sent to the state police lab for analysis. (Id.)

         46. A fired bullet from the kitchen, found near Mr. Lovejoy's shoulder was recovered and sent to the lab for analysis. (Id. at 382-383.)

         47. Photographs were identified by Mr. Ingram of the front of the residence which showed a window covered up and bullet holes near the door which were not there on June 6, 2006, the day of the murders. (Id. at 385.) Those bullet holes were made sometime after the examination of the crime scene. (Id. at 386.)

         48. Once Mr. Ingram became aware that Keith Jeffers had been identified as a suspect, he was entered into NCIC. (Id. at 388.)

         49. After Jeffers was arrested in Pennsylvania, Mr. Ingram went to process the vehicle he was in at the time of his arrest. (Id. at 389.)

         50. It was brought to the Court's attention that a Ms. Pantoja was apparently seen threatening another unnamed witness. (Id. at 404.) The Court noted additionally that there had been many younger adults in the courtroom that had been disruptive. (Id. at 405.)

         51. Defense counsel noted that Ms. Pantoja had been subpoenaed by both the state and defense and that she had confronted counsel and told them she would not testify. (Id.) The defense had not decided whether to release her, and thus, she was barred from the courtroom. Ms. Pantoja insisted on coming in the courtroom, and when she was told she could not, she left. (Id. at 406.)

         52. Trooper Chewning testified out of sequence so he could return to Pennsylvania. Around 10:00 p.m. on June 6, 2006 (several hours after the murders), he received a call that there was a disabled vehicle on Interstate 81, just north of Harrisburg. (Id. at 420.) The driver of the vehicle was Carrie Pauley. (Id. at 422.) When the registration on the vehicle was checked, it was listed as a "homicide" vehicle out of Kanawha County. What that meant was that the vehicle was registered to a murder suspect. (Id.)

         53. Keith Jeffers was one of two men in the back seat of the vehicle and he was taken into custody by Trooper Chewning, (Id. at 424.)

         54. Without specific citation, the Court will note that a portion of the cross-examination of Mr. Ingram was based upon what the police did not do. Fingerprints were not taken from the doorknob or from the shell casings until recently before trial. (Id. at 426-428.) No fingerprints were found. Although pressed by defense counsel, Mr. Ingram did not opine Where the shooter had to be standing in the house. (Id. at 432-435.)

         55. The front door of the residence was not forced. (Id. at 456.) Defense counsel pointed out that the cartridge and bullets don't identify any individual. (Id. at 461.)

         56. Although defense counsel cross-examined about guns found in a locked room at the house, there was nothing disturbed in that room. It was immaculate and had no bullet holes, (Id. at 463.) Shell casings are not necessarily a good source of fingerprints because heat destroys fingerprints. (Id.) It's very rare to find identifiable prints on a casing. The blood samples were not submitted for DNA because the police knew the identity of the victims. (Id. at 464.) Detective Ingram clarified that bullet holes were found on the interior and near the front door during his examination; those were distinct from the bullet holes that were later found and not at the crime scene immediately after the murders. (Id. at 464-468.)

         57. As to not examining footprints found in the blood, Detective Ingram noted that the paramedics had to step in the blood to reach the victims, (Id. at 471.) There was so much blood on the floor mat it was difficult to move and that anyone who was in the kitchen tracked through blood. (Id. at 472.)

         58. Detective Ingram did not believe either the door or the door handle would have been the best surface for recovering fingerprints, (Id. at 476.)

         59. The "incident" with Ms. Pantoja was investigated by the Court, She adamantly denied threatening anyone stating that she started to make a derogatory name, but did not. She apologized to the police officer. (Id. at 481-482.) She was instructed to stay out of the courtroom and to say nothing. (Id. at 483-484.) Ms. Pantoja stated she had not discussed the case, but had said hello to witnesses she knew. (Id. at 484.)

         60. Detective Snuffer of the Sheriffs Department also responded to the homicide scene at about 4:02 a.m. on June 6, 2006. (Id. at 492.) He interviewed Jessica Shamblin. The information from Ms, Shamblin led the detective to start looking for Carrie Pauley in reference to her boyfriend, Keith Jeffers, also known as Little. (Id.)

         61. Detective Snuffer went to a residence in Alum Creek looking for Jeffers and to check on Carrie Pauley. (Id. at 493.) Jeffers was a suspect in the murders. (Id.)

         62. Carrie Pauley was at the residence in Alum Creek. (Id.) She had been in Amandaville earlier. (Id.) Ms. Pauley was not forthcoming with her boyfriend's name until after the police found a car title. (Id. at 496.) Ms. Pauley was informed that her boyfriend was a suspect in three homicides and that he had shot two other people. (Id. at 497.)

         63. Detective Snuffer had. prepared the photo arrays shown to the surviving victims, Adkins and Allen. (Id. at 498.)

         64. He prepared the array including the petitioner's photograph and other pictures that resembled him as much as possible. (Id. at 499.) The array was shown to James Adkins at CAMC where he was being treated. (Id.) Mr. Adkins was informed that the suspect might or might not be in the lineup. Detective-Snuffer did not suggest to Mr. Adkins that he pick out anyone from the lineup. (Id. at 500.)

         65. Mr. Adkins picked out photograph number 6 as the person who shot him. That photograph was of Jeffers. (Id. at 501.) Mr. Adkins marked the photo array by writing ".. .number six is Little, the person responsible for the shooting." (Id.)

         66. Detective Snuffer prepared another array for Mr. Allen. (Id.) The petitioner's photograph was not placed in the number 6 spot. The detective used similar looking individuals. (Id. at 502.)

         67. The array was shown to Jerry Alien in the Intensive Care unit at CAMC. Detective Snuffer told Mr. Allen the person who shot him might or might not be in the array. Mr. Allen knew one of the other individuals in the array, but pointed to photograph 3 as the person who shot him. Photograph 3 was Jeffers. (Id. at 503.)

         68. Both Allen and Adkins knew Keith Jeffers before they were shown the line-up. (Id. at 516.)

         69. Jessica Shamblin admitted she was addicted to drugs on June 6, 2006. (Id. at 522.) She knew Carrie Pauley. She knew the petitioner, by his nickname Little. She knew "Juice" Adkins. She knew Jerry Allen as “Nook." She also knew Amanda Ingram, Dennis Lovejoy and Mr. Childress. (Id. at 522-523.)

         70. On June 5, 2006, the evening before the murders, Ms, Shamblin met up with Carrie Pauley. (Id. at 523.) Ms. Shamblin was getting high at Kanawha Terrace Apartments. Also present were Carrie, "Dred" and Cierra. (Id. at 524, ) Dred and Cierra were not smoking crack, everyone else was. Ms. Shamblin and Carrie left to go get powder cocaine. (Id. at 525.) They went in Carrie's car to Valley View Drive, the home of Reba Parsons. (Id. at 527.)

         71. Ms. Shamblin went into a residence to buy cocaine. Carrie stayed in the car. Later, Ms. Shamblin got Carrie to come into the house because she(Carrie) had the money to purchase cocaine. Little, that is Keith Jeffers, came into the house and pulled a pistol on Ms. Shamblin telling her to get Carrie ...


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