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Galloway v. Ames

Supreme Court of Appeals of West Virginia

November 15, 2019

Don Galloway, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Summers County 18-C-30

          MEMORANDUM DECISION

         Petitioner Don Galloway, pro se, appeals the July 10, 2018, order of the Circuit Court of Summers County denying his second petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Elizabeth Davis Grant, filed a summary 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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In July of 2008, a Summers County grand jury indicted petitioner on two counts of possession of a controlled substance with intent to deliver, one count of intimidation of and retaliation against a public officer, three counts of battery on a police officer, and one count of obstructing an officer. Prior to trial, petitioner, by counsel Jason Parmer, filed a motion to suppress the evidence seized by a search warrant on the grounds that the search warrant affidavit was "bare bones, conclusory, and contains false information offered by Deputy James A. Chellis in intentional or reckless disregard of the truth."

         Following a January 30, 2009, hearing, the circuit court denied petitioner's motion to suppress in a February 6, 2009, order. The court found that two confidential informants, one male and one female, called the Summers County Sheriff's Department on March 1, 2008, and advised that a large shipment of illegal drugs was at petitioner's home. The court further found that Deputy Chellis completed an "Affidavit and Complaint for Search Warrant," in which he referenced these anonymous calls and stated that petitioner's residence was known for high drug activity and that surveillance on the residence revealed a large amount of activity there. The court noted that Deputy Chellis stated that both confidential informants said the same thing regarding the drug activity at petitioner's residence and, therefore, corroborated each other. The court found that the actions taken by Deputy Chellis and the Sheriff's Department constituted independent verification that established the informants' reliability, that there was probable cause for the issuance of the search warrant based upon Deputy Chellis's affidavit, and that the articles seized during the authorized search should be admitted into evidence at petitioner's trial.

         Subsequently, the circuit court permitted Mr. Parmer to withdraw as counsel and appointed attorney Jason Grubb to represent petitioner. During trial, petitioner waived his right to remain silent and testified that he removed a bottle of Xanax prescribed to his girlfriend from her purse and intended to share with a friend, but not to sell it. Following trial, a jury acquitted petitioner of all charges except count two, which charged possession of a controlled substance with intent to deliver.

         The State subsequently filed a recidivist information against petitioner pursuant to West Virginia Code §§ 61-11-18 and -19 given his prior convictions for voluntary manslaughter, possession of a controlled substance with intent to deliver, and third-degree sexual assault. Following a recidivist trial, the circuit court sentenced petitioner to a life term of incarceration as a habitual offender in a February 24, 2010, order. Petitioner appealed his recidivist conviction in State v. Galloway ("Galloway I"), No. 101185 (W.Va. Mar. 11, 2011) (memorandum decision), cert. denied, 565 U.S. 914 (2011).[2] On appeal, petitioner argued that his conviction for possession of a controlled substance with intent to deliver, which triggered the recidivist information, should be reversed and all charges dismissed because his motion to suppress should have been granted. This Court rejected petitioner's argument and affirmed his recidivist conviction, finding "[no] clear error in the circuit court's denial of the motion to suppress." Id. at 3.

         In 2012, petitioner initiated a habeas corpus proceeding and attorney Paul Cassell was appointed as habeas counsel. Petitioner filed an amended petition for a writ of habeas corpus on May 1, 2014, raising ineffective assistance of trial counsel, disproportionate sentence, and cumulative error. At an August 14, 2015, omnibus hearing, petitioner's habeas counsel inquired whether the circuit court wanted to question petitioner regarding his Losh list.[3] Thereafter, the court cautioned petitioner that all issues he did not raise would be waived:

THE COURT: [Petitioner], you understand this is your day in court?
PETITIONER: Yes, sir.
THE COURT: If you want to say anything at all concerning your habeas corpus proceeding, then you need to say it now. If you don't raise it now, if you don't testify, we're not going to come back later and let you testify again. If you don't raise issues that could be raised at this hearing, then they're deem waived. Do you understand that and, knowing that, have you raised all the issues that you wish to raise today?
PETITONER: I'm good, Your Honor. Thank you.
THE COURT: You've raised all ...

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