(Cabell County 15-C-337).
Keith D., appearing pro se, appeals the order of the Circuit
Court of Cabell County, entered on August 30, 2016, denying
his petition for a writ of habeas corpus. Respondent State
of West Virginia appears by counsel Patrick Morrisey and
Shannon Frederick Kiser.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
pled guilty in 2004 to voluntary manslaughter and
consequently was sentenced to a term of incarceration for
fifteen years. Petitioner discharged that sentence,
presumably in fewer than the prescribed years because of a
"good conduct" deduction, and was thereafter convicted
in 2013 of possession of a firearm by a prohibited person.
Upon the 2013 conviction and with consideration of his
voluntary manslaughter conviction and a separate conviction
for grand larceny, petitioner was sentenced to a term of life
imprisonment as a recidivist offender pursuant to West
Virginia Code § 61-11-18(c). Soon after he began serving
his recidivist sentence, petitioner filed a petition for a
writ of habeas corpus in the Circuit Court of Cabell County,
intent on challenging the 2004 voluntary manslaughter
conviction. Petitioner based his petition before the circuit
court entirely on the asserted "utter failure of [his]
trial counsel to provide evidence which proves that the
bullet ricocheted from the ground" when his victim was
shot, to support his theory that he intended only to
frighten, but not kill, his victim by shooting near, but not
at, him. Counsel's failure to develop this evidence,
petitioner argued, forced him to enter a guilty plea despite
his lack of specific intent. The circuit court rejected
petitioner's argument and denied the petition for writ of
appeal, petitioner asserts that the circuit court erred: 1)
in the determination that petitioner's counsel made no
mistake in advising him to enter into a plea agreement with
the State because petitioner was exposed to a potential
first-degree murder conviction, and 2) in the analysis that
led it to find that a jury could infer petitioner's
intent based on the recklessness of his act. Our standard of
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).
this standard, we find no merit in either assignment of error
and find no fault with the circuit court's determination
that petitioner's trial counsel advised him in a
reasonable manner. Under the facts described by petitioner,
it was indeed likely that he could have been convicted of
first-degree murder in a jury trial, notwithstanding
consideration of the recklessness of his act. The circuit
court aptly explained:
While [p]etitioner's defense was that he acted
recklessly and without intent, the undisputed facts are
sufficient that a jury could convict him of murder, which was
his indicted charge. [Counsel's] advising his client as
such was necessary and appropriate, not ineffective or
incompetent. . . . [T]he acceptance of the guilty plea was
not motivated by an error since it was not an error to state
that [petitioner] could have been convicted of murder as
charged under the facts, despite the fact that the bullet
which killed the victim had ricocheted and despite raising a
defense of recklessness without intent to kill.
(Emphasis in original.) We agree with the circuit court's
conclusion, and find no error.
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Justice Tim Armstead Justice Margaret
L. Workman Justice Elizabeth D. Walker Justice Evan ...