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Walton v. Ames

Supreme Court of Appeals of West Virginia

November 15, 2019

Tony J. Walton, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          (Fayette County 18-C-84)

          MEMORANDUM DECISION

         Petitioner Tony J. Walton, pro se, appeals the June 13, 2018, order of the Circuit Court of Fayette County denying his second petition for a writ of habeas corpus. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Holly M. Flanigan, filed a summary response in support of the circuit court's order.

         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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In May of 2009, a Fayette County Grand Jury indicted petitioner on one count of first-degree robbery and one count of assault during the commission of a felony. The indictment alleged that petitioner robbed a Family Dollar store and assaulted the manager. Following a two-day trial, the jury convicted petitioner of both counts of the indictment. Thereafter, the circuit court sentenced petitioner to a term of fifty years of incarceration for first-degree robbery and a term of two to ten years of incarceration for assault during the commission of a felony, to be served consecutively. In June of 2010, petitioner appealed his convictions, arguing that the jury was erroneously instructed on intimidation. By order entered on September 22, 2010, this Court refused petitioner's criminal appeal.

         On June 18, 2012, petitioner, by counsel, filed a petition for a writ of habeas corpus with this Court, alleging ineffective assistance of trial counsel. By order entered September 20, 2012, this Court refused petitioner's habeas petition, without prejudice, to allow "petitioner to re-file in [the] circuit court in order to permit an evidentiary hearing on the allegation of ineffective assistance of trial counsel."[2] On October 29, 2012, petitioner filed a petition for a writ of habeas corpus in the circuit court.

         On June 5, 2013, petitioner filed a Losh list, asserting the following grounds for habeas relief: (1) ineffective assistance of trial counsel; (2) denial of petitioner's right to a trial given the lack of a jury venire representative of the community; (3) improper use of a photo line-up; (4) denial of petitioner's right to an impartial jury given one juror's fear of retaliation; (5) improper jury instruction concerning intimidation; and (6) ineffective assistance of appellate counsel.[3] The circuit court subsequently held two hearings. At a June 5, 2013, hearing, petitioner "advised the [circuit court] that he was satisfied with his habeas counsel's representation and waived, on the record, all grounds not asserted in his Losh [list]." At a July 15, 2013, hearing, the court heard testimony from petitioner, petitioner's trial counsel, and a deputy circuit clerk who testified that the Fayette County Circuit Clerk did not have a policy of excluding certain races from being selected for jury service.

         By order entered August 13, 2013, the circuit court found that none of petitioner's grounds entitled him to habeas relief. With regard to petitioner's ineffective assistance of appellate counsel claim, the circuit court rejected this ground given that he presented no testimony or evidence to support it. Petitioner appealed the August 13, 2013, order in Walton v. Ballard, No. 14-0196, 2015 WL 571031 ( W.Va. Feb. 9, 2015) (memorandum decision). In Walton, this Court affirmed the circuit court's ruling, adopting its "well-reasoned findings and conclusions of law as to those assignments of error raised in this appeal." Id. at *2.

         On April 19, 2018, petitioner, pro se, filed a second habeas petition, raising ineffective assistance of habeas counsel. Petitioner argued that both his criminal appellate counsel and his habeas counsel failed to raise issues that, if asserted, would have changed the outcome of his prior proceedings. Petitioner asserted that habeas counsel was ineffective in failing to call appellate counsel as a witness at the July 15, 2013, hearing. By order entered June 13, 2018, the circuit court found that habeas counsel was not ineffective. The court determined that there were no issues that either petitioner's habeas counsel or his criminal appellate counsel could have raised that would have changed the outcome of his prior proceedings. The court found that petitioner offered nothing new in his second petition other than self-serving assertions and speculation, and further determined that petitioner's claim of ineffective assistance of habeas counsel did not warrant a hearing or the appointment of new counsel.

         It is from the circuit court's June 13, 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:

"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).
. . . .
"'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).

         Additionally, in Syllabus Point 4 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held, in pertinent part:

A prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: ...

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