Summers County 18-C-30
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,
counsel Elizabeth Davis Grant, filed a summary response in
support of the circuit court's order. Petitioner filed a
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.
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."
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.
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.
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). 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.
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. 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
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 ...